Language of document : ECLI:EU:C:2020:549

Provisional text

OPINION OF ADVOCATE GENERAL

PIKAMÄE

delivered on 9 July 2020 (1)

Case C342/19 P

Fabio De Masi,

Yanis Varoufakis

v

European Central Bank (ECB)

(Appeal — Access to European Central Bank (ECB) documents — Document relating to the ECB’s main activity — Decision 2004/258/EC — Article 4(2) and (3) — Scope — Refusal to grant access to a document for internal use — Connection between the document and an ongoing or closed decision-making procedure)






I.      Introduction

1.        By their appeal, Fabio De Masi and Yanis Varoufakis seek to have set aside the judgment of the General Court of the European Union of 12 March 2019, De Masi and Varoufakis v ECB, (2) by which the General Court dismissed the action for annulment of the decision of the European Central Bank (ECB) of 16 October 2017 refusing to grant them access to a document of 23 April 2015 entitled ‘Responses to questions concerning the interpretation of Article 14.4 of the Statute of the ESCB and of the ECB’.

2.        The Court has given very few judgments in proceedings regarding access to documents held by the ECB, by contrast to proceedings arising from the application of Regulation (EC) No 1049/2001, (3) and the present case therefore gives the Court the opportunity to clarify its case-law in this specific field.

3.        As requested by the Court, this Opinion will focus on the third ground of appeal, which concerns in particular the relationship between exceptions to the right of access provided for in Decision 2004/258/EC (4) and the scope of the exception relating to documents for internal use within the meaning of the first subparagraph of Article 4(3) of that decision.

II.    Legal framework

A.      Primary law

4.        Article 15 TFEU provides:

‘1.      In order to promote good governance and ensure the participation of civil society, the Union’s institutions, bodies, offices and agencies shall conduct their work as openly as possible.

2.      The European Parliament shall meet in public, as shall the Council when considering and voting on a draft legislative act.

3.      Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to documents of the Union’s institutions, bodies, offices and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with this paragraph.

General principles and limits on grounds of public or private interest governing this right of access to documents shall be determined by the European Parliament and the Council, by means of regulations, acting in accordance with the ordinary legislative procedure.

Each institution, body, office or agency shall ensure that its proceedings are transparent and shall elaborate in its own Rules of Procedure specific provisions regarding access to its documents, in accordance with the regulations referred to in the second subparagraph.

The Court of Justice of the European Union, the European Central Bank and the European Investment Bank shall be subject to this paragraph only when exercising their administrative tasks.

The European Parliament and the Council shall ensure publication of the documents relating to the legislative procedures under the terms laid down by the regulations referred to in the second subparagraph’.

B.      Decision 2004/258

5.        Recitals 1 to 3 of Decision 2004/258 are worded as follows:

‘(1)      The second subparagraph of Article 1 of the Treaty on European Union enshrines the concept of openness, stating that the Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen. Openness enhances the administration’s legitimacy, effectiveness and accountability, thus strengthening the principles of democracy.

(2)      In the Joint Declaration relating to Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, the European Parliament, the Council and the Commission call on the other institutions and bodies of the Union to adopt internal rules on public access to documents which take account of the principles and limits set out in the Regulation. The regime on public access to ECB documents as laid down in Decision ECB/1998/12 of 3 November 1998 concerning public access to documentation and the archives of the European Central Bank should be revised accordingly.

(3)      Wider access should be granted to ECB documents, while at the same time protecting the independence of the ECB and of the national central banks (NCBs) foreseen by Article 108 [TFEU] and Article 7 of the [Protocol on the Statute of the European System of Central Banks and of the ECB], and the confidentiality of certain matters specific to the performance of the ECB’s tasks. In order to safeguard the effectiveness of its decision-making process, including its internal consultations and preparations, the proceedings of the meetings of the ECB’s decision-making bodies are confidential, unless the relevant body decides to make the outcome of its deliberations public.’

6.        Article 2 of that decision provides:

‘1.      Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to ECB documents, subject to the conditions and limits defined in this Decision.

2.      The ECB may, subject to the same conditions and limits, grant access to ECB documents to any natural or legal person not residing or not having its registered office in a Member State.

…’

7.        Article 4 of Decision 2004/258 provides:

‘…

2.      The ECB shall refuse access to a document where disclosure would undermine the protection of:

—      court proceedings and legal advice,

unless there is an overriding public interest in disclosure.

3.      Access to a document drafted or received by the ECB for internal use as part of deliberations and preliminary consultations within the ECB, or for exchanges of views between the ECB and NCBs, [national competent authorities (NCAs)] or [national designated authorities (NDAs)], shall be refused even after the decision has been taken, unless there is an overriding public interest in disclosure.

Access to documents reflecting exchanges of views between the ECB and other relevant authorities and bodies shall be refused even after the decision has been taken, if disclosure of the document would seriously undermine the ECB’s effectiveness in carrying out its tasks, unless there is an overriding public interest in disclosure.

5.      If only parts of the requested document are covered by any of the exceptions, the remaining parts of the document shall be released.

…’

III. Background to the dispute

8.        The background to the dispute was set out by the General Court in paragraphs 1 to 6 of the judgment under appeal and, for the purposes of these proceedings, may be summarised as follows.

9.        Having been informed by the ECB of the existence of external legal advice of 23 April 2015 entitled ‘Responses to questions concerning the interpretation of Article 14.4 of the Statute of the ESCB and of the ECB’ (‘the document at issue’), Mr De Masi and Mr Varoufakis (‘the appellants’) asked the ECB, by letter of 7 July 2017, to grant them access to that document.

10.      By letter of 3 August 2017, the ECB refused to grant access to that document on the basis of, first, the exception provided for in the second indent of Article 4(2) of Decision 2004/258, concerning the protection of legal advice and, secondly, the exception provided for in the first subparagraph of Article 4(3) of that decision, concerning the protection of documents for internal use.

11.      By letter of 30 August 2017, the applicants submitted a confirmatory application for access to the document at issue, under Article 7(2) of that decision.

12.      By decision of 16 October 2017, the ECB confirmed its refusal to grant access to the document at issue, relying on the same exceptions as those set out in the decision of 3 August 2017.

IV.    The procedure before the General Court and the judgment under appeal

13.      By application lodged at the Registry of the General Court on 8 December 2017, the appellants brought an action for the annulment of the decision of 16 October 2017.

14.      In support of that action, the appellants raised, in essence, two pleas in law, alleging infringement of the second indent of Article 4(2) of Decision 2004/258 and infringement of the first subparagraph of Article 4(3) of that decision.

15.      The ECB contended that the action should be dismissed.

16.      In the judgment under appeal, the General Court dismissed the action brought by the appellants as unfounded. After examining their second plea in law, it held, in paragraph 74 of the judgment under appeal, that the ECB was fully entitled to base its refusal to grant access to the document at issue on the exception provided for in the first subparagraph of Article 4(3) of Decision 2004/258. It therefore took the view that it was not necessary to examine the first plea concerning the exception to the right of access provided for in the second indent of Article 4(2) of that decision.

17.      To that end, the General Court ruled out that the first subparagraph of Article 4(3) of that decision required it to be established that the decision-making process could be seriously undermined and, in paragraph 30 of the judgment under appeal, stated that a refusal based on that provision requires only that it be established, first, that that document at issue is for internal use as part of deliberations and preliminary consultations within the ECB, or for exchanges of views between the ECB and the national authorities concerned, and, secondly, that there is no overriding public interest in disclosure of that document. It thus found that the ECB was entitled to take the view that the document at issue was a document for internal use within the meaning of the first subparagraph of Article 4(3) of the decision, in so far as the ECB considered that that document was intended to provide information and support to the deliberations of the Governing Council within the scope of the competences conferred on it by Article 14.4 of Protocol No 4 on the Statute of the European System of Central Banks and of the ECB (‘the Protocol on the ESCB and the ECB’).

18.      In the assessment of the arguments put forward by the appellants, the General Court, in the first place, rejected the assertion that the exception provided for in the first subparagraph of Article 4(3) of Decision 2004/258 was not applicable to the document at issue, since that document was a legal opinion which fell within the scope of the exception relating to the protection of legal advice, provided for in the second indent of Article 4(2) of that decision.

19.      In the second place, it rejected the appellants’ argument that the conditions for applying the first subparagraph of Article 4(3) of that decision were not satisfied since the document at issue, first, is not an internal document and, secondly, does not relate to a specific procedure.

20.      In the third place, the General Court analysed and rejected the plea alleging infringement of the obligation to state reasons.

21.      In paragraphs 62 to 73 of the judgment under appeal, the General Court examined the second part of the second plea, alleging the existence of an overriding public interest in disclosure of the document at issue, and concluded that it should be rejected.

V.      Forms of order sought

22.      By their appeal, the appellants claim that the Court should:

–        set aside in its entirety the judgment under appeal and uphold the application at first instance, and

–        order the respondent to pay the costs in accordance with Article 184 of the Rules of Procedure of the Court of Justice, read in conjunction with Article 137 et seq. of those rules.

23.      The ECB contends that the Court should:

–        dismiss the appeal, and

–        order the appellants to pay the costs.

VI.    Legal assessment

24.      The appellants raise four grounds in support of their appeal, alleging, first, infringement of Article 10(3) TEU, Article 15(1) and Article 298(1) TFEU, and Article 42 of the Charter of Fundamental Rights of the European Union; secondly, infringement of the obligation to state reasons; thirdly, infringement of Article 4(2) and (3) of Decision 2004/258; and fourthly, infringement of primary law in so far as the General Court refused to recognise the existence of an overriding public interest in disclosure of the document at issue.

25.      This Opinion will focus only on the third ground of appeal, which is divided into two parts. The General Court is said to have, first, disregarded the respective scopes of Article 4(2) and (3) of Decision 2004/258 and, secondly, erred in law in taking the view that the refusal to grant access was justified, in accordance with Article 4(3) of that decision, even though the document at issue was not for internal use within the meaning of that provision.

26.      Before analysing the abovementioned ground of appeal, I consider it necessary to set out the legal framework for that analysis, in view of the reference made by the General Court in the judgment under appeal and the appellants in their appeal to solutions adopted by the Court in its case-law on Regulation No 1049/2001.

A.      The legal framework for the analysis

27.      It is established that requests for access to documents held by the ECB may be made only in accordance with Decision 2004/258, on the basis of which the appellants’ request was rejected.

28.      It should be noted that the adoption of Decision 2004/258 followed the joint declaration relating to Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, (5) by which the European Parliament, the Council and the Commission called on other EU institutions and bodies to adopt internal rules on public access to documents which take account of the principles and limits set out in that regulation.

29.      As is stated in recital 3, Decision 2004/258 seeks to grant wider access to ECB documents than the access which existed under the regime laid down in Decision 1999/284/EC of the European Central Bank of 3 November 1998 concerning public access to documentation and the archives of the European Central Bank (6) (ECB/1998/12), while at the same time protecting the independence of the ECB and of the NCBs foreseen by Article 108 TFEU and Article 7 of the Protocol on the ESCB and the ECB, and the confidentiality of certain matters specific to the performance of the ECB’s tasks. (7)

30.      In accordance with Article 3(a) of Decision 2004/258, the document covered by that decision must be understood as a document drawn up or held by the ECB ‘relating to its policies, activities or decisions’, wording which is characterised by its general nature. As the ECB expressly states in the pleadings it lodged before the General Court and the Court of Justice, the right of access granted by that decision does not concern documents relating to administrative tasks only, but extends, in general, to all ‘ECB documents’.

31.      The adoption of Decision 2004/258 was therefore prior to the entry into force of the Treaty of Lisbon on 1 December 2009, which marks a change in the legal framework, as regards primary law, governing public access to documents of the EU institutions, since the introduction of Article 15 TFEU, which replaced Article 255 EC, extended the scope of the principle of transparency in EU law. Unlike Article 255 EC, whose scope was limited to documents of the Parliament, the Council and the Commission, Article 15(3) TFEU now provides for a right of access to documents of the institutions, bodies, offices and agencies of the EU, including the Court of Justice of the European Union, the ECB and the European Investment Bank, where they exercise administrative functions. (8)

32.      In accordance with the fourth subparagraph of Article 15(3) TFEU, the ECB is subject to the system of access to documents of the institutions, laid down in the first subparagraph of that provision, only when exercising its administrative tasks. It follows that the conditions governing access to documents held by that institution which relate to its main activity cannot be laid down by regulations adopted on the basis of the second subparagraph of Article 15(3) TFEU. (9)

33.      It is therefore apparent that, where a request is made for access and that request is refused in connection with a document that relates to the ECB’s main activity, the solutions adopted by the Court in its case-law on Regulation No 1049/2001 cannot be adopted by applying that case-law by analogy, (10) since the ECB is not bound by that regulation. That does indeed seem to me to be the case in respect of the document at issue, which, as indicated in the statement of reasons for the decision refusing access, consists of a legal opinion evaluating the powers held by the Governing Council under Article 14.4 of the Protocol on the ESCB and the ECB and examining the action that that council should take where functions performed by NCBs outside the ESCB risk interfering with the objectives and tasks of the ESCB. That document is described as being intended to provide further input to the internal considerations of the decision-making bodies and support their deliberations and consultations regarding the provision of emergency liquidity. It is therefore possible to conclude that the document at issue relates to the exercise of the ECB’s main activity, in particular with regard to its responsibility for monetary policy and the stability of the financial system. (11)

B.      The failure to have regard to the scope of Article 4(2) and (3) of Decision 2004/258

34.      It should be recalled that the refusal to grant access complained of is based, first, on the exception provided for in the second indent of Article 4(2) of Decision 2004/258, concerning the protection of legal advice, and, secondly, on the exception set out in the first subparagraph of Article 4(3) of that decision, concerning the protection of documents for internal use. In the judgment under appeal, the General Court examined only one of the two pleas for annulment brought before it, namely the plea alleging infringement of the latter of the abovementioned provisions, and, having considered that the ECB was entitled to base its refusal to grant access to the document at issue on the exception provided for in the first subparagraph of Article 4(3) of Decision 2004/258, it took the view that it was not necessary to examine the first plea, alleging infringement of the second indent of Article 4(2) of that decision. (12)

35.      Before reaching that conclusion, the General Court stated, referring to two judgments of the Court of Justice which interpret the provisions of Regulation No 1049/2001, that the ECB may take into account more than one of the grounds for refusal set out in Article 4 of Decision 2004/258 when assessing a request for access and stipulated that the exceptions on which the refusal to grant access to the document at issue was based ‘are both autonomous grounds for refusal’, since the exception relating to the protection of legal advice does not constitute a lex specialis in relation to the exception relating to the protection of documents for internal use. (13)

36.      The appellants submit, in the first place, that the General Court erred in law in finding that the second indent of Article 4(2) of Decision 2004/258, concerning the protection of legal views, does not constitute a special provision (lex specialis) in relation to Article 4(3) of that decision. They contend that the first of those provisions has a blocking effect, which results in the second not being applicable. In support of that ground of appeal, the appellants merely state that the expression ‘opinions for internal use’ in Article 4(3) of Decision 2004/258 applies only to opinions that are not legal opinions, as otherwise the exception provided for in the second indent of Article 4(2) of that decision, concerning the protection of legal advice, would be rendered meaningless.

37.      As the General Court rightly stated in the judgment under appeal, (14) the right of access to ECB documents, conferred by Article 2(1) of Decision 2004/258 on any citizen of the Union and any natural or legal person residing or having its registered office in a Member State, is subject to certain limits based on reasons of public or private interest. More specifically, and in accordance with recital 4 thereof, Decision 2004/258 provides, in Article 4, for a system of exceptions authorising the ECB to refuse access to a document where disclosure of that document would undermine one of the interests protected by Article 4(1) and (2) or where that document is for internal use as part of deliberations and preliminary consultations within the ECB, or for exchanges of views between the ECB and the NCBs, NCAs or NDAs, or where it reflects exchanges of views between the ECB and other relevant authorities and bodies.

38.      It is clear that Article 4(1) to (3) of Decision 2004/258 takes the form of a listing in succession of the various grounds for refusing to grant access, which are merely juxtaposed and provide no indication as to any form of link between the provisions in question. The way in which Article 4(1) to (3) of Decision 2004/258 is set out supports the General Court’s conclusion that each ground for refusing to grant access is specific and autonomous and may be relied on, individually or cumulatively, by the ECB. According to the scheme of Article 4 of Decision 2004/258, refusal to grant a request for access is justified where the conditions laid down by one of the exceptions provided for in that article are met. Likewise, neither the wording of the second indent of Article 4(2), nor that of Article 4(3) of that decision, support in any way the appellants’ claim that the former provision is a lex specialis in relation to the latter.

39.      Furthermore and above all, Article 4(5) of Decision 2004/258 refers to the partial disclosure of the requested document as follows: ‘if only parts of the requested document are covered by any of the exceptions, the remaining parts of the document shall be released’. That wording undeniably reflects the possibility of applying cumulatively the various exceptions set out in paragraphs 1 to 3 of that article in respect of a single document.

40.      That possibility can be explained by the fact that the institution to which a request for access is addressed may have difficulty in classifying the document requested in the light of its content and the recognised grounds for refusing to grant access. Owing to its complex nature, a single document may, a priori, fall within the scope of several exceptions to the right of access (15) and it seems to me unreasonable to force that institution to make a single choice even though its analysis will, most likely, be challenged and subject to a review of legality. As a result, the right of public access to documents and its effectiveness are in no way undermined since the person seeking access has the possibility of challenging the refusal to grant access complained of by way of an amicable settlement or subsequent legal proceedings, the merits of which are subject to the final assessment of the court.

41.      In the present case, the document at issue is a perfect illustration of that situation as it is a legal view that was requested by the ECB from a third party for the purposes of internal discussions. The appellants criticise its classification as an opinion for internal use and even its classification as legal advice, as will be shown below.

42.      With regard to the appellants’ claim that the interpretation adopted by the General Court leads to the second indent of Article 4(2) of Decision 2004/258 being rendered redundant, it must be noted that situations where the grounds for refusing to grant access overlap are not systematic in nature, since the protection of a legal opinion may, in a particular situation, be covered by the single exception laid down in that provision. Furthermore, if the General Court had taken the view that the exception based on the protection of documents for internal use was not justified, it should have examined the validity of the refusal to grant access in the light of the ground relating to the protection of legal advice, laid down in the second indent of Article 4(2) of Decision 2004/258.

43.      Lastly, I consider that it would be useful to consider the solution adopted by the Court in its judgment of 19 December 2019, ECB v Espírito Santo Financial (Portugal) (C‑442/18 P, EU:C:2019:1117). In that case, the General Court had annulled the ECB’s decision refusing full access to the minutes recording the decisions of the Governing Council on the granting of emergency liquidity assistance to a Portuguese banking institution, with respect in particular to the information regarding the amount of credit in question. After finding that the General Court erred in law when assessing the duty to state reasons and subsequently annulling the judgment under appeal, the Court gave final judgment in the matter by examining the abovementioned procedural plea and only one of the substantive pleas raised by the appellant in that case, that is, the plea alleging infringement of Article 4(1)(a) of Decision 2004/258, concerning the confidentiality of the proceedings of the ECB’s decision-making bodies. The Court rejected those two pleas in law, taking the view that the reasons given in the decision refusing access met the requisite legal standard and that that decision was properly based on the abovementioned provision. It did not therefore take into account and assess the second substantive plea raised by the appellant, alleging infringement of the first indent of Article 4(2) of Decision 2004/258, thus enshrining the uniqueness and autonomy in law of each of the grounds for refusing access laid down in that decision. (16)

44.      The appellants submit, in the second place, that, while the document at issue amounts to a legal view which, as such, falls within the scope of the second indent of Article 4(2) of Decision 2004/258, it does not satisfy the necessary conditions to be eligible for protection since it is an expert legal assessment, which is abstract and scientific in nature, concerning the interpretation of a text which cannot be classified as legal advice within the meaning of that provision. The appellants contend that the General Court erred in not ruling on those arguments put forward by the appellants.

45.      It is clear that that complaint has no factual basis: the General Court considered and rejected the appellants’ argument as inherently contradictory, (17) since they claim and at the same time dispute that the document at issue may be characterised as legal advice for the purpose of applying the exception referred to in the second indent of Article 4(2) of Decision 2004/258. In any event, since the General Court confirmed that the ECB was entitled to refuse access solely on the basis of Article 4(3) of that decision, without ruling on the classification of the document at issue as legal advice within the meaning of the second indent of Article 4(2) of that decision, there is no need to adjudicate on an argument raised by the appellants that is ineffective.

C.      The infringement of the first subparagraph of Article 4(3) of Decision 2004/258

46.      In the second part of the third ground of appeal, the appellants submit that the protection provided for by Article 4(3) of Decision 2004/258 and that afforded in the second subparagraph of Article 4(3) of Regulation No 1049/2001 have the same purpose, namely to protect the integrity of an internal decision-making process relating to a specific administrative procedure.

47.      They state that an external expert assessment concerning an abstract legal issue, such as that requested by the ECB and to which access has been refused, does not constitute a document relating to a decision-making process or a final decision. Rather, it is a document which determines the external framework of the institution’s freedom to take decisions and which is therefore unconnected with the protected decision-making process.

48.      Moreover, the appellants claim that the statement ‘even after the decision has been taken’, in Article 4(3) of Decision 2004/258, demonstrates that the document concerned must be for internal use in connection with a specific administrative procedure, a conclusion that has also been confirmed by the Court’s case-law on a structurally similar provision, in that case the second subparagraph of Article 4(3) of Regulation No 1049/2001, which was disregarded by the General Court in the judgment under appeal.

49.      The ECB disputes both the admissibility and the merits of the second part of the third ground of appeal.

1.      Admissibility

50.      It should be recalled that the Court of Justice has no jurisdiction to establish the facts or, in principle, to examine the evidence which the General Court accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it. That appraisal does not therefore constitute, save where the clear sense of the evidence has been distorted, a point of law which is subject to review by the Court of Justice. (18)

51.      On the basis of that settled case-law, the ECB submits that the complaint that the legal opinion at issue cannot constitute a document relating to an internal decision-making process is inadmissible since, in essence, that complaint is directed at the assessment of the evidence carried out by the General Court, but the appellants have not demonstrated that that evidence has been distorted.

52.      In my view, that line of argument is based on an incorrect premiss, namely a misinterpretation of the wording of the third ground of appeal which, in fact, does not in any way call into question the General Court’s assessment of the facts or the evidence.

53.      After having referred to the statement of reasons for the ECB’s decision refusing access and having established that the reasons for that decision were not contradicted by the examination of the content of the document at issue, the General Court found that that document was a legal assessment from external counsel concerning the power held by the Governing Council under Article 14.4 of the Protocol on the ESCB and the ECB and, as it did not relate to a specific procedure, it had not led the ECB to take a final position in a specific case. (19)

54.      It must be pointed out that the General Court’s interpretation of the document at issue is not challenged by the appellants in the third ground of appeal. Indeed, the appellants expressly criticise the legal classification of that expert opinion by the General Court as a document for internal use within the meaning of Article 4(3) of Decision 2004/258, as interpreted by the General Court in the judgment under appeal, which equates to a legal assessment, which is subject to review by the Court of Justice.

55.      Accordingly, the objection of inadmissibility raised by the ECB should be rejected.

2.      Substance

56.      The appellants submit that Article 4(3) of Decision 2004/258 could not be applied in the present case, on the basis that, in the first place, because of its external origin and content, that is to say an expert opinion concerning an abstract legal question as to the interpretation of specific provisions, the document at issue cannot be regarded as relating to an internal decision-making process.

57.      That line of argument, which is based solely on the intrinsic nature of the document at issue cannot, in my view, be upheld, since it fails to take account of the very purpose of the exception provided for in Article 4(3) of Decision 2004/258, which concerns the purpose of the document concerned, bearing in mind that the document may have been drafted or merely ‘received’ by the ECB.

58.      Neither the fact that the document at issue is from external legal counsel and was requested specifically for that purpose by the ECB, nor the fact that it was the result of an expert opinion concerning the interpretation of a rule determining the legal framework of the ECB’s powers is, a priori, incompatible with the purpose of that document being for internal use. Moreover, the legal issue addressed in that opinion clearly cannot be classified as an ‘external legal situation’, as the appellants have erroneously claimed.

59.      The appellants claim, in the second place, that the document at issue does not fall within the scope of the exception provided for in Article 4(3) of Decision 2004/258 in the absence of any link to a specific decision-making procedure, an argument which raises the question as to the scope of that exception.

60.      According to settled case-law, in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part. (20)

(a)    Interpretation of the term ‘document for internal use

61.      As regards the wording of Article 4(3) of Decision 2004/258, it should be noted that, while that provision refers to documents for internal use as part of ‘deliberations’, reference is also made to the ‘consultations’ or even simple ‘exchanges of views’ between the ECB and other entities, and the latter two concepts appear to be unrelated to the idea of a decision-making process. Nevertheless, that provision must be interpreted as a whole, an interpretation which must therefore include the use of the expression ‘even after the decision has been taken’, which clearly refers to the term ‘decision-making process’ that is either is ongoing or closed at the time when the request for access is made.

62.      The question that arises is whether that expression relates to all of the situations envisaged in Article 4(3) of Decision 2004/258 or solely to ‘deliberations’ or even only to ‘exchanges of views’ between the ECB and other entities, thus making the situation relating to a document solely for internal use within the ECB completely separate. The first assumption mentioned above is fully consistent with the position of that expression within the first subparagraph, which is confirmed by versions of the text in languages other than English. (21) It is also consistent with the meaning of the adjective ‘preliminary’, used in conjunction with ‘consultations’, which refers to what precedes or prepares for something else that is considered to be more important, be it an event or an act.

63.      It is questionable whether the phrase ‘even after the decision has been taken’ can be understood as an expression that merely clarifies the time ‘horizon’ of the protection sought, which, under Article 4(3) of Decision 2004/258, does not end when an decision is taken, in so far as a decision is adopted, that clarification being implied. Apart from the difficulty of reconciling the use of the definite article ‘the’ in the phrase cited above, the inherent weakness of such reasoning having to rely on an implicit meaning is not, in my view, such as to call into question the outcome of the interpretative analysis which shows that the document at issue has the required connection with a decision-making process, as is confirmed by the contextual and teleological interpretation.

64.      As regards the contextual interpretation, it should be observed that Article 4(3) of Decision 2004/258 contains two subparagraphs, the second of which concerns the production of documents ‘reflecting exchanges of views between the ECB and other relevant authorities … even after the decision has been taken, if disclosure of the document would seriously undermine the ECB’s effectiveness in carrying out its tasks’.

65.      The second subparagraph of Article 4(3) of Decision 2004/258 was added by Decision 2015/529, amending the former text, recital 8 of which states that the ECB is required to interact with national authorities and bodies, Union institutions, bodies, offices and agencies, relevant international organisations, supervisory authorities and administrations of third countries, pursuant to Article 127(1) and (5) TFEU and Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions. (22) Recital 8 continues as follows: ‘For the ECB to cooperate effectively, it is essential to provide and preserve a “space to think” for the free and constructive exchange of views and information between the abovementioned authorities, institutions and other bodies. On this basis, the ECB should be entitled to protect documents exchanged as part of its cooperation with national central banks, national competent authorities, national designated authorities and other relevant authorities and bodies’.

66.      Even though the protection of documents relating only to ‘exchanges of views’ between the ECB and certain entities other than those mentioned in the first subparagraph of Article 4(3) of Decision 2004/258 is envisaged, it is readily apparent that the legislature chose to insert into the second subparagraph of Article 4(3) of that decision the expression ‘even after the decision has been taken’, which is identical to that used in the first subparagraph and clearly indicative of a connection with a decision-making process. In those circumstances, the question arises as to how the ‘exchanges of views’ between the ECB and NCBs, NCAs or NDAs referred to in the first subparagraph could justify a different reading from that entailing the abovementioned connection, and the extent to which that reading might not be relevant to the whole of that provision. (23)

67.      As regards the teleological interpretation, and as the General Court rightly pointed out, the purpose of the first subparagraph of Article 4(3) of Decision 2004/258 is, inter alia, to protect a space for reflection within the ECB in which the institution’s decision-making bodies may have a confidential exchange of views as part of their deliberations and preliminary consultations. However, staying with that geometric terminology, the perimeter of that space remains to be determined.

68.      In that regard, it is appropriate to recall the wording of recital 3 of Decision 2004/258, which states that the decision seeks to grant ‘wider access … to ECB documents’, while at the same time protecting the independence of the ECB and the confidentiality of certain matters specific to the performance of its tasks. The second part of that recital provides the necessary clarification in order to ensure that the purpose of that measure is clearly understood by stipulating that, ‘in order to safeguard the effectiveness of its decision-making process, including its internal consultations and preparations, the proceedings of the meetings of the ECB’s decision-making bodies are confidential, unless the relevant body decides to make the outcome of its deliberations public’. Even though that recital indicates a qualification to the right of access, the wording used highlights the objective pursued of safeguarding the effectiveness of the ECB’s ‘decision-making process’ and expressly links internal preparatory work to that process. The protection of the preliminary consultation and reflection process does not appear to be separable from the protection of the deliberation process and of its final stage, involving a substantive decision being taken in a matter relating to a specific case.

69.      Accordingly, the first subparagraph of Article 4(3) of Decision 2004/258, which concerns the exception to the right of access to documents for internal use by the ECB, must be interpreted in the light of recital 3 of that decision, which, in my view, cover only documents drawn up or received in the course of a specific decision-making process which is ongoing or concluded at the time when the request for access is made.

70.      I note, moreover, that various assertions made by the ECB in its response are in complete harmony with the above teleological interpretation. The ECB submits that the first subparagraph of Article 4(3) of Decision 2004/258 is based on a general rule (of presumption) that the granting of access to documents for internal use runs the risk of ‘undermining the ECB’s decision-making process’ and that, in order to protect the ‘space to think’, those documents are, therefore, in principle, confidential. Similarly, the ECB states that the first subparagraph of Article 4(3) of Decision 2004/258 protects the ‘space to think’ within the ECB in the context of ‘the preparation of decisions addressed to third parties’ or that Decision 2004/258 recognises that, prior to ‘ECB decisions addressed to third parties’, there must be an internal ‘space to think’ which allows for an effective, informal and, above all, confidential exchange of views, ideas, interpretations and proposed solutions. (24)

71.      The interpretation proposed is not liable to deprive the exception concerned of its effectiveness and gives it a scope which, in my view, is consistent with the balance sought by Decision 2004/258 between the right of public access to documents held by the ECB and the recognition of the specific nature of that institution which, in accordance with Article 130 TFEU, must be able effectively to pursue the objectives attributed to its tasks, through the independent exercise of the specific powers conferred on it for that purpose by the Treaty and the Statute of the ESCB. (25)

72.      As regards that desire to strike a balance between transparency and confidentiality, the latter consideration may indeed have resonance with regard, in particular, to the outcome of deliberations of the Governing Council, as is clear from the judgment of 19 December 2019, ECB v Espírito Santo Financial (Portugal) (C‑442/18 P, EU:C:2019:1117).

73.      In that judgment, the Court interpreted the exception referred to in Article 4(1)(a) of Decision 2004/258, relating to the confidentiality of the proceedings of the ECB’s decision-making bodies, in the light of the second sentence of Article 10.4 of the Protocol on the ESCB and the ECB, which provides that it is for the Governing Council to decide whether it is necessary make the outcome of its deliberations public, relying, in that regard, on the settled case-law that the wording of secondary EU legislation must be interpreted, in so far as possible, in a manner consistent with the provisions of the Treaties. The Court therefore concluded that Article 4(1)(a) of Decision 2004/258, read in conjunction with the second sentence of Article 10.4 of the Protocol on the ESCB and the ECB, must be interpreted as safeguarding the confidentiality of the outcome of deliberations of the Governing Council, without it being necessary that the refusal to grant access to documents containing that outcome be subject to the condition that the disclosure thereof undermines the protection of the public interest. (26)

74.      In the judgment under appeal, (27) the General Court also referred to the second sentence of Article 10.4 of the Protocol on the ESCB and the ECB and to Article 14.4 of that protocol, which set out the Governing Council’s power to oppose the performance of national tasks by NCBs, in interpreting the first subparagraph of Article 4(3) of Decision 2004/258 and finding that the document at issue was indeed a document for internal use, as it was ‘intended to provide information and support to the deliberations of the Governing Council’ when exercising the powers conferred on it by Article 14.4 of the Protocol on the ESCB and the ECB. By highlighting the deliberations of the Governing Council as the purpose of the document at issue, that reading by the General Court of the provisions concerned simply corroborates, in my view, the interpretation of the first subparagraph of Article 4(3) of Decision 2004/258 which requires the document concerned to be connected to an ongoing or concluded decision-making procedure relating to a specific case.

75.      At this point, and in that context, it is necessary to assess the classification of the document at issue as a document for internal use within the meaning of the first subparagraph of Article 4(3) of Decision 2004/258.

(b)    The classification of the document at issue

76.      As a preliminary point, it is appropriate to recall some of the reasons given for the ECB’s decision refusing access to the document at issue, which are worded as follows:

‘As the legal opinion deals with general issues relating to the application and interpretation of Article 14.4 of the ESCB Statute, it does not address the specific case of the provision of emergency liquidity assistance (ELA) to Greek banks, nor does it assess the lawfulness of any other specific ECB Governing Council decision taken in application of Article 14.4 of the ESCB/ECB Statute, including decisions whether or not to object to an NCB proposal regarding the provision of ELA …

The Executive Board wishes to clarify that the subject matter of the present application is the legal opinion commissioned to provide the ECB’s decision-making bodies with further legal insight for their internal deliberations and reflections and, as such, is also protected under Article 4(3), first subparagraph, of Decision [2004/258] …

The legal opinion was intended to provide legal expertise to clarify the legal framework, enrich the internal considerations of the decision-making bodies and support their ELA-related deliberations and discussions not only in 2015, but also on future occasions. As such, it serves any ongoing or future considerations of cases within the scope of Article 14.4 of the ESCB Statute (regarding the national tasks of NCBs (e.g. the provision of ELA)) and the legal rules and conditions that the ECB is entitled to impose on NCBs in this context …’.

77.      In the light of that reasoning and the examination of the content of the document at issue, the General Court took the view that the document at issue did not relate to a specific procedure and, consequently, did not constitute a document which led the ECB to take a final position in a specific case, which, nevertheless, was not such as to take that document outside the scope of the exception provided for in the first subparagraph of Article 4(3) of Decision 2004/258 for two reasons. (28)

78.      Following a comparative interpretative analysis of the first subparagraph of Article 4(3) of Decision 2004/258 and Article 4(3) of Regulation No 1049/2001, the General Court, first, noted that the application of the exception provided for in the first provision cited does not require the ECB to show that disclosure of the document at issue would seriously undermine its decision-making process and, accordingly, the fact that the document at issue does not relate to a specific procedure is not sufficient to preclude the application of that exception.

79.      That assessment, based on a difference in wording compared to legislation that is excluded from the applicable legal framework in the light of the nature of the document at issue, which is related to the exercise of the ECB’s main activity, appears to be irrelevant. (29) It is readily apparent that the General Court did not give an intrinsic literal interpretation of the first subparagraph of Article 4(3) of Decision 2004/258 and, more specifically, the expression ‘even after the decision has been taken’; nor did it take into account the wording of recital 3 of that decision. The finding that the exception to the right of access provided for in the abovementioned provision is not conditional upon proof that disclosure of the document concerned would have any form of adverse effect does not answer the question whether that document does indeed fall under the definition of a document for internal use, as regards its link to a decision-making procedure, and therefore falls within the scope of that exception.

80.      The General Court held, secondly, that the document at issue was intended, in general, to support the deliberations in which the Governing Council would be expected to participate, in accordance with Article 14.4 of the Protocol on the ESCB and the ECB, in 2015 and beyond, and that it was, therefore, a ‘preparatory document with a view to the adoption of possible decisions by ECB bodies’.

81.      It follows from that reasoning that the internal use of the document in question may be perceived from the perspective of the adoption, in the immediate or more distant future, of an act in the context of a procedure relating to a particular situation. The mere possibility of a link between the document and a future hypothetical administrative procedure is therefore sufficient, in the General Court’s view, to classify that document as ‘preparatory’ and for it to fall within the scope of the exception to the right of access provided for in the first subparagraph of Article 4(3) of Decision 2004/258.

82.      It seems to me that that assessment stems from an overly broad interpretation of the term ‘preparatory’ and therefore of the scope of that exception, by allowing the ECB to refuse access to any document, of any kind, on account of its potential internal use in the future. That approach has thus made it possible, in the present case, to make a document confidential where the sole purpose of that document is to contribute to a general discussion of a legal subject.

83.      There is indeed room for debate as to the scope of the concept of the ‘connection’ between a document and an ongoing or concluded administrative procedure. Must that document be clearly defined by the fact that it belongs to a case relating to such a procedure or, in a broader sense, which is perfectly conceivable, can it be a document that is merely connected with the matters addressed in that process, that is to say relevant to those matters, without even having been specifically drawn up or received in the course of that process?

84.      The fact remains that that debate presupposes the existence of an internal process of deliberation which will ultimately lead to the adoption of an individual substantive decision relating to a particular situation. In that regard, it must be noted that, in paragraph 28 of its defence lodged before the General Court, the ECB clearly stated that ‘decisions of the ECB under Article 14.4 of the Statute of the ESCB are always individual decisions’ with respect to its relations with the NCBs which grant emergency liquidity.

85.      Even though the ECB’s decision refusing access dates back to 16 October 2017, thus more than two years after the document at issue, dated 23 April 2015, was drawn up, the statement of reasons for that decision does not mention any ongoing deliberation process concerning a particular situation or an individual decision to which that document is directly linked as its content is related to matters dealt with in the document. As mentioned above, the decision refusing access merely refers to a document intended to support ‘ELA-related deliberations and discussions not only in 2015, but also on future occasions’ and serving any ‘ongoing or future’ considerations of cases within the scope of Article 14.4 of the ESCB Statute, without providing further details.

86.      In conclusion, while the ‘space to think’ within the ECB must undeniably be protected, this must be in line with its purpose, namely to prepare for the decisions to be taken in specific administrative procedures, which must be addressed to third parties, and this is indeed capable of ensuring the independence of that institution when carrying out its tasks.

87.      It follows that, in my view, the General Court erred in law in holding that the ECB was entitled, in such circumstances, to refuse access to the document at issue.

88.      If the Court were to declare the second part of the third ground of appeal admissible and well founded, as I propose, the appeal should be upheld and the judgment under appeal set aside. The case, in my view, should be referred back to the General Court, in accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, since the state of the proceedings does not permit the Court of Justice to give final judgment in the matter. Since the action for annulment brought against the refusal to grant access has been dismissed solely on the basis of the finding that the exception provided for in the first subparagraph of Article 4(3) of Decision 2004/258 was well founded, the case should be referred back to the General Court in order for it to give judgment on the appellants’ first plea for annulment, alleging infringement of the second indent of Article 4(2) of that decision, concerning the protection of legal advice.

VII. Conclusion

89.      In the light of the foregoing considerations, I propose that the Court should declare the second part of the third ground of appeal admissible and well founded and, consequently, uphold the appeal.


1      Original language: French.


2      Judgment in Case T‑798/17, not published, ‘the judgment under appeal’, EU:T:2019:154.


3      Regulation of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).


4      Decision of the European Central Bank of 4 March 2004 on public access to European Central Bank documents (OJ 2004 L 80, p. 42), as amended by Decision (EU) 2015/529 of the European Central Bank of 21 January 2015 (‘Decision 2004/258’).


5      OJ 2001 L 145, p. 43.


6      OJ 1999 L 110, p. 30.


7      Decision 2004/258 has been amended by Decision 2011/342/EU of the ECB of 9 May 2011 (ECB/2011/6) (OJ 2011 L 158, p. 37) and Decision (EU) 2015/529 of the ECB of 21 January 2015 (ECB/2015/1) (OJ 2015 L 84, p. 64). The latter measure introduced an amendment to the first subparagraph of Article 4(3) of Decision 2004/258, on the basis of which the refusal to grant access complained of was adopted, and a second subparagraph was inserted in that paragraph.


8      See judgment of 18 July 2017, Commission v Breyer (C‑213/15 P, EU:C:2017:563, paragraphs 50 and 51).


9      See, by analogy, judgment of 18 July 2017, Commission v Breyer (C‑213/15 P, EU:C:2017:563, paragraph 48).


10      That is the case, in particular, with regard to the principle that exceptions to the right of access must be interpreted strictly, adopted by the Court, having regard to the wording of recital 4 and Article 1 of Regulation No 1049/2001, in accordance with which the purpose of that regulation is to give the fullest possible effect to the right of public access to documents held by the institutions concerned (judgment of 13 July 2017, Saint-Gobain Glass Deutschland v Commission, C‑60/15 P, EU:C:2017:540, paragraph 63 and the case-law cited).


11      I note that, although the General Court did not expressly state that the document at issue relates to the ECB’s main activity, that classification is clearly apparent from the matters referred to in paragraphs 33, 34 and 36 of the judgment under appeal.


12      Paragraphs 4, 18 and 74 of the judgment under appeal.


13      Paragraphs 44 and 45 of the judgment under appeal.


14      Paragraphs 16 and 17 of the judgment under appeal.


15      In the judgment of 28 July 2011, Office of Communications (C‑71/10, EU:C:2011:525), which concerned Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (OJ 2003 L 41, p. 26), the Court interpreted Article 4(2) of that directive, which lists the exceptions which Member States may provide to the general rule that information must be disclosed to the public, as allowing the public authority which receives the request for access to take into account cumulatively a number of the grounds for refusal set out in that provision. In that regard, the Court held, in paragraph 30 of that judgment, that the fact that the interests served by the refusal to disclose and those served by disclosure are referred to separately in Article 4(2) of Directive 2003/4 does not preclude the cumulation of those exceptions to the general rule of disclosure, given that the interests served by refusal to disclose may sometimes overlap in the same situation or the same circumstances.


16      I would also point out that the cumulative application of grounds for refusing access has been endorsed by the Court when interpreting Regulation No 1049/2001 (see the judgments of the Court cited in paragraph 44 of the judgment under appeal). Article 4 of that regulation also lays down exceptions to the right of access and is identical in structure to the corresponding provision in Decision 2004/258. However, for the reasons set out in the part of this Opinion relating to the legal framework for the analysis, a reference to that case-law for the purposes of applying it by analogy to the present case is not appropriate.


17      See paragraph 47 of the judgment under appeal.


18      See judgment of 26 May 2005, Tralli v ECB (C‑301/02 P, EU:C:2005:306, paragraph 78).


19      See paragraphs 33, 34, 36 and 50 of the judgment under appeal.


20      See judgment of 10 September 2014, Ben Alaya (C‑491/13, EU:C:2014:2187, paragraph 22 and the case-law cited).


21      By way of examples, the French version ‘L’accès à un document rédigé ou reçu par la BCE destiné à l'utilisation interne dans le cadre de délibérations et de consultations préliminaires au sein de la BCE, ou destiné à des échanges de vues entre la BCE et les BCN, les ACN ou les ADN, est refusé même après que la décision a été prise, à moins qu’un intérêt public supérieur ne justifie la divulgation du document susvisé’, the Spanish version ‘El acceso a documentos redactados o recibidos por el BCE para su uso interno en el marco de deliberaciones y consultas previas en el BCE o para intercambios de opinión entre el BCE y los BCN, las ANC o las AND, se denegará incluso después de adoptada la decisión de que se trate, salvo que la divulgación de los documentos represente un interés público superior’, the Italian version ‘L’accesso a un documento elaborato o ricevuto dalla BCE per uso interno, come parte di deliberazioni e consultazioni preliminari in seno alla BCE stessa, o per scambi di opinioni tra la BCE e le BCN, le ANC o le AND, viene rifiutato anche una volta adottata la decisione, a meno che vi sia un interesse pubblico prevalente alla divulgazione’ and the Estonian version ‘Juurdepääsust EKP koostatud või saadud sisekasutuses olevale dokumendile, mis on osa EKP-sisestest arutlustest või eelkonsultatsioonidest ning EKP seisukohtade vahetusest RKP-dega, riiklike pädevate asutustega või riiklike määratud asutustega, tuleb keelduda ka pärast otsuse vastuvõtmist, kui puudub ülekaalukas avalik huvi avalikustamiseks’.


22      OJ 2013 L 287, p. 63.


23      I note, moreover, that the difference between the two situations referred to in Article 4(3) of Decision 2004/258 lies in the fact that the confidentiality of the documents referred to in the second subparagraph is conditional upon proof that disclosure of those documents would have a negative impact on the ECB’s effectiveness in carrying out its tasks.


24      See paragraphs 48, 59 and 78 of the ECB’s response.


25      See, to that effect, judgment of 10 July 2003, Commission v ECB (C‑11/00, EU:C:2003:395, paragraph 134).


26      See judgment of 19 December 2019, ECB v Espírito Santo Financial (Portugal) (C‑442/18 P, EU:C:2019:1117, paragraph 40 and 43).


27      See paragraphs 38 to 41 of the judgment under appeal.


28      It should be pointed out that, in paragraph 76 of its response and after recalling the factors chosen by the General Court for its assessment, the ECB stated that the General Court’s claims are ‘legally indisputable’, thus expressing its unreserved support for the analysis carried out by that court.


29      The same applies to the reference made by the appellants to the judgment of 13 July 2017, Saint-Gobain Glass Deutschland v Commission (C‑60/15 P, EU:C:2017:540), concerning the application of the exception to the right of access set out in the first subparagraph of Article 4(3) of Regulation No 1049/2001 regarding the protection of the decision-making process, in the specific context of a request for access to environmental information.