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Action brought on 27 December 2010 - Thesing and Bloomberg Finance v ECB

(Case T-590/10)

Language of the case: English

Parties

Applicants: Gabi Thesing and Bloomberg Finance LP (London, United Kingdom), (represented by: M.H. Stephens and R.C. Lands, Solicitors)

Defendant: European Central Bank

Form of order sought

-    Annul the decision of the European Central Bank communicated by letters dated 17 September 2010 and 21 October 2010, refusing access to the documents requested by the applicants;

-    Require the European Central Bank to grant access to those documents to the applicants, in accordance with the Decision of the European Central Bank of 4 March 2004 on public access to European Central Bank documents (ECB/2004/3)¹; and

-    Require the ECB to pay the costs of the application.

Pleas in law and main arguments

By means of the present application, the applicants seek, pursuant to Article 263 TFEU, annulment of a decision of the European Central Bank communicated by letters dated 17 September 2010 and 21 October 2010, whereby the European Central Bank refused the applicants' request for access to the following documents pursuant to the Decision of the European Central Bank of 4 March 2004 on public access to European Central Bank documents (ECB/2004/3):

A note entitled The impact on government deficit and debt from off-market swaps. The Greek case (SEC/GovC/X/10/88a);

A second note, entitled The Titlos transaction and possible existence of similar transactions impacting on the euro area government debt or deficit levels (SEC/GovC/X/10/88b).

In support of their action, the applicants submit the following pleas in law:

Firstly, the applicants allege that the European Central Bank misconstrued and/or misapplied Article 4.1(a) of the decision of the European Central Bank dated 4 March 2004 (ECB/2004/3), which provides for an exception to the general right of access conferred by article 2 of that decision, as:

The European Central Bank failed to construe article 4.1(a) as requiring consideration of public interest factors in favour of disclosure;

The European Central Bank failed to give any sufficient or proper weight to the public interest factors in favour of disclosing the requested documents;

The European Central Bank overstated and/or misidentified the public interest against disclosure of the requested documents.

In addition, the applicants allege that the European Central Bank misconstrued and/or misapplied article 4.2 of the decision of the European Central Bank dated 4 March 2004 (ECB/2004/3), which provides for an exception to the general right of access conferred by article 2 of that decision, as:

The European Central Bank ought to have construed an "overriding" public interest as meaning a public interest that is strong enough to outweigh any public interest in maintaining the exemption;

The European Central Bank ought to have concluded that there was an overriding public interest, in this sense, in favour of the disclosure of the information requested.

Finally, the applicants allege that the European Central Bank misconstrued and/or misapplied article 4.3 of the decision of the European Central Bank dated 4 March 2004 (ECB/2004/3), which provides for an exception to the general right of access conferred by article 2 of that decision, as:

The European Central Bank ought to have construed an "overriding" public interest as meaning a public interest that is strong enough to outweigh any public interest in maintaining the exemption;

The European Central Bank ought to have concluded that there was an overriding public interest, in this sense, in favour of the disclosure of the information requested;

The European Central Bank overstated and/or misidentified the public interest against disclosure of the requested documents.

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¹ - Decision of the European Central Bank of 4 March 2004 on public access to European Central Bank documents (ECB/2004/3) (OJ 2004 L 80, p. 42).