MeSoFa v ECB (Access to documents - Decision 2004/258/EC - ECB's assessment that Sberbank banka was failing or likely to fail - Judgment) [2024] EUECJ T-632/22 (06 November 2024)

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( Access to documents - Decision 2004/258/EC - ECB’s assessment that Sberbank banka was failing or likely to fail - Refusal to grant access - Action for annulment - Act not open to challenge - Admissibility - Article 22(2) of Regulation (EU) No 1024/2013 - Article 32(1) of Regulation (EU) No 468/2014 - Supervised entity - Shareholders’ rights of defence - Article 41 of the Charter of Fundamental Rights - Right of access to the ECB’s file )

MeSoFa Vermögensverwaltungs AG, formerly Sber Vermögensverwaltungs AG, initially Sberbank Europe AG, established in Vienna (Austria), represented by O. Behrends, lawyer,

European Central Bank (ECB), represented by E. Yoo, S. Letocart and M. Ioannidis, acting as Agents,

composed of K. Kowalik-Bańczyk, President, E. Buttigieg (Rapporteur) and G. Hesse, Judges,

having regard to the written part of the procedure, in particular the order of 14 July 2023 reserving the plea of inadmissibility until the Court rules on the substance of the case and the decision of 26 October 2023 not to grant a second exchange of pleadings,

1 By its action under Article 263 TFEU, the applicant, MeSoFa Vermögensverwaltungs AG, formerly Sber Vermögensverwaltungs AG, initially Sberbank Europe AG, seeks the annulment of the decision of the European Central Bank (ECB) of 27 July 2022, by which the ECB refused its request for access to the confidential version of the failing or likely to fail assessment in respect of Sberbank banka d.d. (‘the FOLTF assessment’), for the purposes of Article 18(1)(a) and (4)(c) of Regulation (EU) No 806/2014 of the European Parliament and of the Council of 15 July 2014 establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation (EU) No 1093/2010 (OJ 2014 L 225, p. 1) (‘the contested decision’).

2 Before its authorisation was withdrawn on 15 December 2022, the applicant was a credit institution established in Austria, which was directly supervised by the ECB. It held 99.99% of the shares in Sberbank banka (‘Sberbank Slovenia’), a credit institution established in Slovenia, which was also under the ECB’s direct prudential supervision.

3 On 27 February 2022, after consulting the Single Resolution Board (SRB), the ECB carried out the FOLTF assessment of Sberbank Slovenia, in accordance with the second subparagraph of Article 18(1) of Regulation No 806/2014. On the same day, in accordance with the third subparagraph of Article 18(1) of that regulation, the ECB communicated that assessment to the SRB and to the European Commission.

4 On 1 March 2022, taking the view that the conditions laid down in Article 18(1) of Regulation No 806/2014 were met, the SRB, by Decision SRB/EES/2022/20, adopted a resolution scheme in respect of Sberbank Slovenia, in accordance with Article 18(6) of that regulation. The resolution scheme provided, inter alia, for the transfer of the shares issued by Sberbank Slovenia to Nova Ljubljanska banka d.d. On the same day, the Commission endorsed the resolution scheme, in accordance with the second subparagraph of Article 18(7) of Regulation No 806/2014.

5 On 10 June 2022, the ECB published on its website the non-confidential version of the FOLTF assessment concerning Sberbank Slovenia, in which certain information regarded as confidential had been omitted.

6 By letter of 30 June 2022, the applicant requested that the ECB grant it access to the confidential version of the FOLTF assessment of Sberbank Slovenia (‘the request for access’). The request for access was based on Article 6(1) of Decision 2004/258/EC of the European Central Bank of 4 March 2004 on public access to European Central Bank documents (OJ 2004 L 80, p. 42), as last amended by Decision (EU) 2015/529 of the European Central Bank of 21 January 2015 (OJ 2015 L 84, p. 64), and on Article 41(2)(b) and Article 42 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

7 On 27 July 2022, in reply to the request for access, the ECB adopted the contested decision.

8 The ECB first of all informed the applicant that it would assess the request for access in the light (i) of Decision 2004/258 and (ii) of the legal regime governing access to the ECB’s supervisory file, namely Article 22(2) of 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 (OJ 2013 L 287, p. 63; ‘the SSM Regulation’) and Article 32(1) of Regulation (EU) No 468/2014 of the European Central Bank of 16 April 2014 establishing the framework for cooperation within the Single Supervisory Mechanism between the European Central Bank and national competent authorities and with national designated authorities (‘the SSM Framework Regulation’) (OJ 2014 L 141, p. 1), having regard to the fact that the applicant had relied on Article 41(2)(b) of the Charter as the basis for the request for access.

9 The ECB also stated that the contested decision concerned the assessment of the request for access in the light of the latter legal regime referred to in paragraph 8 above.

10 Next, the ECB refused the request for access on the ground that the applicant was not a party, within the meaning of Article 26 of the SSM Framework Regulation, to a supervisory procedure, which would justify granting it access to the supervisory file, including the confidential version of the FOLTF assessment of Sberbank Slovenia, which was a different entity. On the basis of that analysis, the ECB refused to grant the applicant access to the requested document pursuant to Article 22(2) of the SSM Regulation and to Article 32(1) of the SSM Framework Regulation.

11 In addition, the ECB stated that the applicant would be informed separately of the outcome of the assessment of its request in the light of Decision 2004/258.

12 Indeed, by decision LS/PS/2022/42 of 27 July 2022, the ECB refused the request for access based on Decision 2004/258. The confirmatory application made by the applicant pursuant to Article 7(2) of Decision 2004/258 was rejected by Decision LS/CL/2022/218 of the ECB of 21 September 2022.

15 By separate document, the ECB raised a plea of inadmissibility in respect of the present action under Article 130(1) of the Rules of Procedure of the General Court.

16 The ECB submits that the action is inadmissible on the ground that the contested decision does not affect the legal situation of the applicant and is therefore not capable of forming the subject matter of an action for annulment pursuant to Article 263 TFEU.

17 In that regard, the ECB argues, in essence, that the contested decision is not a measure ‘immediately and irreversibly affecting’ the legal situation of the applicant and capable, therefore, of being classified as a challengeable act; rather, it has the characteristics of a preparatory measure forming part of a preliminary administrative procedure.

18 The ECB adds that, according to the case-law, measures concerning access to the file are only capable of affecting the legal situation of the applicant as a result of the adoption of the decision closing the administrative procedure in question, that is to say, in the present case, as a result of the adoption by the SRB of the resolution scheme concerning Sberbank Slovenia. The ECB infers from this that the case-law according to which annulment actions brought against measures denying access to the file are inadmissible applies equally, and even a fortiori, in cases, such as the present, where the applicant sought to rely on the right to access the file relating to an administrative procedure at a time when the decision closing that procedure had already been adopted.

19 The ECB also maintains that the inadmissibility of the present action is in line with the nature of the right to access the file as a corollary to the rights of the defence. Admitting that the legality of measures denying access to the file could be challenged independently of the judicial review of the decision closing the administrative procedure would wrongly transform the right to access the file into an independent right, that is to say, into a right having an ‘end in itself’.

20 The ECB also argues that effective judicial protection is guaranteed in the present case by the indirect judicial review of the contested decision carried out in the context of the action brought by the applicant on 18 August 2022, seeking, inter alia, the annulment of the resolution scheme in respect of Sberbank Slovenia (Case T‑523/22, MeSoFa v Commission and SRB).

22 It should be borne in mind that, according to settled case-law, under the fourth paragraph of Article 263 TFEU, a natural or legal person may challenge only measures the legal effects of which are binding on, and capable of affecting the interests of, that person by bringing about a distinct change in his or her legal position (see, to that effect, judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9; of 12 September 2006, Reynolds Tobacco and Others v Commission, C‑131/03 P, EU:C:2006:541, paragraph 54; and of 31 January 2019, International Management Group v Commission, C‑183/17 P and C‑184/17 P, EU:C:2019:78, paragraph 51). Thus, it is in principle those measures which definitively determine the position of an institution upon the conclusion of an administrative procedure, and which are intended to have legal effects capable of affecting the interests of the complainant, that constitute acts open to challenge, and not intermediate measures whose purpose is to prepare for the final decision, which do not have those effects (see judgment of 18 November 2010, NDSHT v Commission, C‑322/09 P, EU:C:2010:701, paragraph 48 and the case-law cited).

23 Thus, acts preparatory to a decision do not adversely affect a person and a complainant may rely on defects in acts prior to the decision and closely linked to it only in the context of an action challenging the decision adopted at the end of the procedure (see order of 31 March 2020, ZU v EEAS, T‑499/19, not published, EU:T:2020:134, paragraph 33 and the case-law cited).

24 In the present case, it should be held that the contested decision refusing the applicant access to the confidential version of the FOLTF assessment of Sberbank Slovenia definitively determines the ECB’s position in relation to the applicant’s request for access to that entity’s supervisory file and immediately and irreversibly affects the applicant’s legal situation as regards its possible right of access to that file, since it produces binding legal effects from the moment of its adoption and does not require the adoption of a subsequent decision in order to produce those effects. Accordingly, the contested decision must be regarded as a challengeable act for the purposes of Article 263 TFEU.

26 First of all, as regards the arguments set out in paragraphs 17 and 18 above, they are based on the case-law of the General Court relating to actions for annulment, brought by parties to procedures relating to infringement of the rules on competition and addressees of a statement of objections, against Commission measures refusing them access to the file relating to those procedures.

27 The General Court thus held that the aforementioned Commission measures, even though they may constitute an infringement of the rights of the defence, produce in principle only limited effects, characteristic of a preparatory measure forming part of a preliminary administrative procedure. Those measures alter the legal situation of the applicants only as a result of the adoption of a final decision finding that they have infringed the rules on competition. According to the General Court, only measures immediately and irreversibly affecting the legal situation of the undertakings concerned would be of such a nature as to justify, even before completion of the administrative procedure, the admissibility of an action for annulment (see, to that effect, judgment of 18 December 1992, Cimenteries CBR and Others v Commission, T‑10/92 to T‑12/92 and T‑15/92, EU:T:1992:123, paragraph 42, and order of 9 July 2003, Commerzbank v Commission, T‑219/01, EU:T:2003:201, paragraph 58).

28 That case-law relied on by the ECB is not applicable in the present case for two reasons.

29 First, the applicant is not a party to the administrative resolution procedure, which concerns Sberbank Slovenia. The applicant, as a shareholder of Sberbank Slovenia, is a third party to that procedure. However, in the case-law set out in paragraphs 26 and 27 above, the applicants for access to the file were personally concerned by the procedures relating to infringement of the rules on competition conducted by the Commission.

30 Secondly, the request for access and the contested decision occurred after the adoption of the resolution scheme in respect of Sberbank Slovenia, in other words after the conclusion of the resolution procedure in respect of that entity.

31 It is thus apparent from paragraphs 29 and 30 above that the contested decision is separable from the administrative procedure that led to the adoption of a resolution scheme in respect of Sberbank Slovenia. Therefore, that decision cannot be treated in the same way as a ‘preparatory measure forming part of a preliminary administrative procedure’, within the meaning of the case-law cited in paragraph 27 above, which would produce its legal effects solely as a result of the adoption of a subsequent measure closing that administrative procedure. On the contrary, the contested decision immediately and irreversibly affects the applicant’s legal situation as regards access to the supervisory file of Sberbank Slovenia.

32 Next, as regards the ECB’s argument set out in paragraph 19 above, the following should be noted.

33 It is true that it is apparent from the case-law that the right of access to the file is a corollary of the principle of respect for the rights of the defence (judgments of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 68, and of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraphs 98 and 99).

34 To the same effect, it has been held that the request for access to the file has no purpose in the absence of an administrative procedure affecting the legal interests of the applicant for access and, consequently, in the absence of a file concerning that person (judgments of 6 October 2021, OCU v ECB, T‑15/18, not published, EU:T:2021:661, paragraph 94, and of 22 March 2023, Satabank v ECB, T‑72/20, EU:T:2023:149, paragraph 63).

35 However, it cannot be concluded from the case-law cited in paragraph 34 above that a decision refusing to grant a request for access to the file made by a person who is not a party to a preliminary administrative procedure, as is the case with the contested decision in the present case, does not constitute a challengeable act. That case-law concerns the substance of the dispute in that, according to that case-law, the request for access to the file is not justified on grounds of the protection of the rights of the defence and is therefore devoid of purpose.

36 Lastly, as regards the ECB’s argument set out in paragraph 20 above, it should be borne in mind that, in an action for annulment under Article 263 TFEU, the legality of an EU measure must be assessed on the basis of the facts and the law as they stood at the time when the measure was adopted (see, to that effect, judgments of 17 May 2001, IECC v Commission, C‑449/98 P, EU:C:2001:275, paragraph 87, and of 16 April 2015, Parliament v Council, C‑317/13 and C‑679/13, EU:C:2015:223, paragraph 45). In the present case, the request for access and the contested decision occurred after the adoption of the resolution scheme in respect of Sberbank Slovenia, which is subject to judicial review in the context of Case T‑523/22, MeSoFa v Commission and SRB. It should therefore be concluded that that decision does not form part of the legal framework in the light of which the legality of that resolution scheme must be examined. It follows that, contrary to the ECB’s argument, no judicial review of the contested decision, even an ‘indirect’ one, can be carried out in the context of Case T‑523/22, MeSoFa v Commission and SRB.

37 In the light of all the foregoing considerations, the plea of inadmissibility raised by the ECB must be rejected.

38 In support of its action, the applicant relies on three pleas, alleging, first, infringement of Article 41 of the Charter, second, infringement of Article 22(2) of the SSM Regulation and of Article 32(1) of the SSM Framework Regulation, and, third, in essence, infringement of its right to access the file of the procedure relating to the adoption of the decision on access to documents on transparency grounds.

39 It is appropriate to examine, first and together, the first and second pleas, then the third plea.

The first and second pleas, alleging, respectively, infringement of Article 41 of the Charter and infringement of Article 22(2) of the SSM Regulation and of Article 32(1) of the SSM Framework Regulation

40 In the context of the first plea, the applicant claims that the contested decision infringes Article 41(2)(b) of the Charter. Its argument is based on the interpretation of that provision to the effect that the right of access to the file, which is laid down therein, serves not only to ensure the effective exercise of the rights of the defence during an administrative procedure which may lead to the adoption of a decision adverse to the person concerned, but also to ensure transparency for persons affected by a decision of the administration.

41 In support of that analysis, the applicant relies on the wording of Article 41 of the Charter, from which it is apparent that the exercise of the right of access to the file does not, unlike the exercise of the right to be heard and of the right to be provided with the reasons for a decision, require the existence of a decision.

42 The applicant also submits that it is the person who is mainly affected by the SRB’s decision concerning the adoption of a resolution scheme in respect of Sberbank Slovenia – for which the FOLTF assessment constitutes the main basis – in so far as that decision provides for the transfer of the shares that the applicant holds in the capital of that credit institution and, therefore, converts its ownership right in Sberbank Slovenia into a claim corresponding to the purchase price of its shares.

43 Furthermore, the applicant submits that the ECB based the contested decision on the consideration that, at the time when it submitted the request for access, the ECB did not envisage the adoption of any reviewable decision. The applicant infers from this that the contested decision is based on an incorrect interpretation of Article 41(2)(b) of the Charter, according to which interpretation the exercise of the right of access to the file, laid down in that provision, requires the adoption of a decision by the administration subsequent to the exercise of that right.

44 In the context of the second plea, the applicant claims that the contested decision infringes Article 22(2) of the SSM Regulation and Article 32(1) of the SSM Framework Regulation.

45 The applicant also argues, ‘as a precaution’, that if Article 32(1) of the SSM Framework Regulation had to be interpreted as limiting the right of access to the file enshrined in Article 22(2) of the SSM Regulation and in Article 41(2)(b) of the Charter, it would be illegal. Similarly, Article 22(2) of the SSM Regulation would be illegal if it had to be interpreted as limiting the right of access to the file laid down in Article 41(2)(b) of the Charter. The applicant thus raises, pursuant to Article 277 TFEU, a plea of illegality in respect of Article 22(2) of the SSM Regulation and of Article 32(1) of the SSM Framework Regulation.

47 It should be recalled that, by the contested decision, the ECB refused the request for access, based on Article 41(2)(b) of the Charter, to the confidential version of the FOLTF assessment of Sberbank Slovenia, on the ground, in essence, that the applicant was not a party to a supervisory procedure, which would justify, for the purpose of respecting the rights of the defence, access to the file of that procedure, which file includes the requested document. The ECB noted that that document concerned Sberbank Slovenia, which was a different entity from the applicant. The ECB thus concluded that it could not grant the applicant access to that document on the basis of Article 22(2) of the SSM Regulation and of Article 32(1) of the SSM Framework Regulation.

48 In that regard, as regards the first plea, in the first place, it should be noted that Article 41 of the Charter, entitled ‘Right to good administration’, provides, in paragraph 1, that every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the European Union. Paragraph 2 of that article states that that right includes:

‘(a) the right of every person to be heard, before any individual measure which would affect him or her adversely is taken;

(b) the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy;

49 It is apparent from the wording of Article 41(1) and (2) of the Charter that that provision provides for a right of access to the file which is associated with the right of a person to have his or her affairs handled impartially, fairly and within a reasonable time by the administration. This right applies to access to the file of the person concerned by such cases, and not to all documents held by a given institution (judgment of 22 March 2023, Satabank v ECB, T‑72/20, EU:T:2023:149, paragraph 80).

50 That interpretation of Article 41(2) of the Charter is confirmed by a comparison of its wording with that of Article 42 of the Charter. It is that latter provision which provides for access to any document of an institution, irrespective of the existence of the file of a person concerned and of his or her legal interest (judgment of 22 March 2023, Satabank v ECB, T‑72/20, EU:T:2023:149, paragraph 80).

51 Accordingly, the Courts of the European Union have stated that a request for access to a file is based on the exercise of the rights of the defence (judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraphs 98 and 99; of 15 September 2016, Yanukovych v Council, T‑348/14, EU:T:2016:508, paragraph 68; and of 2 December 2020, Kalai v Council, T‑178/19, not published, EU:T:2020:580, paragraph 73), as has been mentioned in paragraph 33 above. Such a request has no purpose in the absence of an administrative procedure affecting the legal interests of the applicant for access and, consequently, in the absence of a file concerning that person (see case-law cited in paragraph 34 above).

52 To the same effect, it has been stated that the right of access to the file enshrined in Article 41(2)(b) of the Charter concerned persons or undertakings subject to proceedings opened or decisions taken against them (see judgment of 20 December 2023, OCU v SRB, T‑496/18, not published, EU:T:2023:857, paragraph 36 and the case-law cited).

53 In the second place, it should be recalled that the document to which the applicant requested access, namely the FOLTF assessment of Sberbank Slovenia, constitutes a preparatory act in the context of the resolution procedure, which must be regarded as a complex administrative procedure involving a number of authorities, only the outcome of which, resulting from the SRB’s exercise of its power, may be subject to judicial review (judgment of 6 October 2021, OCU v ECB, T‑15/18, not published, EU:T:2021:661, paragraph 99; see also, to that effect, judgment of 6 May 2021, ABLV Bank and Others v ECB, C‑551/19 P and C‑552/19 P, EU:C:2021:369, paragraphs 66 and 73).

54 The Court of Justice has stated that the ECB, as supervisor of significant entities and groups as referred to in Article 6(4) of the SSM Regulation, is, as a rule, best placed to make a FOLTF assessment (judgment of 6 May 2021, ABLV Bank and Others v ECB, C‑551/19 P and C‑552/19 P, EU:C:2021:369, paragraph 72). Its involvement in the procedure provided for in Article 18 of Regulation No 806/2014 is based not so much on the separation of supervisory and resolution functions as on the particular expertise which that institution has as supervisory authority (judgment of 6 May 2021, ABLV Bank and Others v ECB, C‑551/19 P and C‑552/19 P, EU:C:2021:369, paragraph 73).

55 The Court has already held that the right of access to the file enshrined in Article 41(2)(b) of the Charter concerns the entity that is the subject of the resolution scheme, namely, in the present case, Sberbank Slovenia, and not its shareholders or creditors. Such shareholders or creditors cannot claim a right of access to the file (see, to that effect, judgment of 1 June 2022, Del Valle Ruíz and Others v Commission and SRB, T‑510/17, EU:T:2022:312, paragraphs 464 and 465).

56 In the light of the considerations set out in paragraphs 47 to 55 above, it is appropriate, first of all, to reject the applicant’s argument, set out in paragraph 40 above, that the right of access to the file laid down in Article 41(2)(b) of the Charter also serves to ensure transparency.

57 In the light of those same considerations, it is appropriate, next, to hold that the applicant, as a shareholder and, therefore, as a different entity from Sberbank Slovenia, cannot claim a right of access to the file relating to the resolution procedure concerning Sberbank Slovenia and, consequently, a right of access to the confidential version of the FOLTF assessment of that entity.

58 The conclusion set out in paragraph 57 above cannot be called into question by the applicant’s claim that, in its capacity as a shareholder of Sberbank Slovenia, it is the person who is mainly affected by the SRB’s decision concerning the adoption of a resolution scheme in respect of that entity (see paragraph 42 above). In that regard, it is sufficient to refer to the case-law cited in paragraph 55 above, according to which the shareholders of the entity which is the subject of a resolution scheme do not have a right of access to the file on the basis of Article 41(2)(b) of the Charter.

59 It is appropriate, lastly, to reject the applicant’s argument, set out in paragraph 43 above, which is based on a misunderstanding of the contested decision. It is sufficient to recall that that decision is based on the consideration that the applicant was not a party to a supervisory procedure and, consequently, was not entitled to have access to the file of Sberbank Slovenia, which was a different entity. At no point in the contested decision did the ECB rely on the fact that the request for access was submitted after the adoption of the resolution scheme in respect of Sberbank Slovenia.

60 As regards the second plea, it should be noted that Article 22 of the SSM Regulation, entitled ‘Due process for adopting supervisory decisions’, provides:

‘1. Before taking supervisory decisions in accordance with Article 4 and Section 2 of Chapter III, the ECB shall give the persons who are the subject of the proceedings the opportunity of being heard. The ECB shall base its decisions only on objections on which the parties concerned have been able to comment.

2. The rights of defence of the persons concerned shall be fully respected in the proceedings. They shall be entitled to have access to the ECB’s file, subject to the legitimate interest of other persons in the protection of their business secrets. The right of access to the file shall not extend to confidential information.

61 Article 32 of the SSM Framework Regulation, entitled ‘Access to files in an ECB supervisory procedure’, clarifies the scope of Article 22 of the SSM Regulation (see, to that effect, judgment of 22 March 2023, Satabank v ECB, T‑72/20, EU:T:2023:149, paragraph 61). It provides as follows in paragraphs 1 and 2:

‘1. The rights of defence of the parties concerned shall be fully respected in ECB supervisory procedures. For this purpose, and after the opening of the ECB supervisory procedure, the parties shall be entitled to have access to the ECB’s file, subject to the legitimate interest of legal and natural persons other than the relevant party, in the protection of their business secrets. The right of access to the file shall not extend to confidential information. The NCAs shall forward to the ECB, without undue delay, any request received by them related to the access to files connected with ECB supervisory procedures.

2. The files consist of all documents obtained, produced or assembled by the ECB during the ECB supervisory procedure, irrespective of the storage medium.’

62 In the present case, even if the FOLTF assessment of Sberbank Slovenia were an element of a ‘file’ and of a supervisory ‘procedure’ within the meaning of Article 22 of the SSM Regulation and of Article 32 of the SSM Framework Regulation, it would be appropriate to hold that the applicant could not be regarded as being entitled to have access to that file in the context of such a procedure, since it would not be it that would be subject to that procedure, but a different entity, namely Sberbank Slovenia (see, to that effect, judgment of 6 October 2021, OCU v ECB, T‑15/18, not published, EU:T:2021:661, paragraph 101).

63 It is also appropriate to reject the plea of illegality raised by the applicant and set out in paragraph 45 above.

64 First, it cannot be claimed that Article 32(1) of the SSM Framework Regulation infringes Article 22(2) of the SSM Regulation, since it has already been found, in paragraphs 60 to 62 above, that those two provisions do not confer on the applicant any right of access to the file of Sberbank Slovenia.

65 Secondly, the applicant submits, in essence, that if Article 22(2) of the SSM Regulation and Article 32(1) of the SSM Framework Regulation were interpreted as allowing the right of access to the file to be exercised solely in the context of a specific supervisory procedure that may lead to the adoption of an adverse decision, they would infringe Article 41(2)(b) of the Charter by limiting the right of access to the file laid down in that provision. That claim is based on the interpretation of the aforementioned provision of the Charter by the applicant in the context of the first plea, according to which interpretation the right of access to the file also serves to ensure transparency. That interpretation was rejected in paragraphs 48 to 56 above.

66 In the light of all the foregoing considerations, the first and second pleas must be rejected.

The third plea, alleging infringement of the applicant’s right to have access to the file of the procedure relating to the adoption of the decision concerning access to documents on transparency grounds

67 The applicant submits, in essence, that, even if the interpretation of Article 41(2)(b) of the Charter by the ECB were valid, it would be entitled to have access to the file of the procedure governed by Decision 2004/258 and, therefore, to have access to the FOLTF assessment of Sberbank Slovenia, in order to be able to submit its observations on whether that document needs to be subject to redactions in order to protect confidentiality interests with a view to its disclosure to the public.

69 In that regard, first, it should be recalled that a request for access to the file is based on the exercise of the rights of the defence and that such a request has no purpose in the absence of an administrative procedure affecting the legal interests of the applicant for access and, consequently, in the absence of a file concerning that person (see paragraph 51 above).

70 Secondly, the procedure established by Decision 2004/258 is intended to ensure that the ECB’s decision-making process is as transparent as possible and cannot be treated in the same way as an ‘administrative procedure affecting the legal interests of the applicant for access’, within the meaning of the case-law cited in paragraph 51 above, in the context of which that applicant has a right of access to the ‘file concerning that person’.

71 It is appropriate to recall in that regard that Article 2(1) of Decision 2004/258 gives any citizen of the European Union, and any natural or legal person residing or having its registered office in a Member State, a right of access to ECB documents, subject to the conditions and limits defined in that decision. Furthermore, according to Article 6(1) of that decision, a person requesting access is not required to justify his or her request and therefore does not have to demonstrate any interest in having access to the documents requested.

72 It follows from the consideration set out in paragraph 70 above that the person requesting access to ECB documents under the regime established by Decision 2004/258 – in this case the applicant – cannot rely on the right of access to the file laid down in Article 41(2)(b) of the Charter in order to obtain access to those documents and to submit observations on their disclosure to the public, as the applicant argues.

73 In the light of the foregoing considerations, the third plea must be rejected and, consequently, the action must be dismissed in its entirety.

74 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the ECB, in accordance with the form of order sought by the ECB.

2. Orders MeSoFa Vermögensverwaltungs AG to bear its own costs and to pay those incurred by the European Central Bank (ECB).

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> MeSoFa v ECB (Access to documents - Decision 2004/258/EC - ECB's assessment that Sberbank banka was failing or likely to fail - Judgment) [2024] EUECJ T-632/22 (06 November 2024) URL: http://www.bailii.org/eu/cases/EUECJ/2024/T63222.html Cite as: [2024] EUECJ T-632/22, EU:T:2024:782, ECLI:EU:T:2024:782

Court of Justice of the European Communities (including Court of First Instance Decisions)