Case C‑342/19 P

Fabio De Masi
and
Yanis Varoufakis

v

European Central Bank

Judgment of the Court (First Chamber), 17 December 2020

(Appeal – Access to European Central Bank (ECB) documents – Decision 2004/258/EC – Article 4(3) – Exceptions – Document received by the ECB – Opinion from an external service provider – Internal use as part of deliberations and preliminary consultations – Refusal to grant access)

1. EU institutions – Right of public access to documents – Decision 2004/258 of the European Central Bank – Exceptions to the right of access to documents – Obligation to state reasons – Scope

   (Art. 296, second para., TFEU; European Central Bank Decision 2004/258, as amended by Decisions 2011/342 and 2015/529, Art. 4)

   (see paragraphs 49-52)

2. EU institutions – Right of public access to documents – Decision 2004/258 of the European Central Bank – Exceptions to the right of access to documents – Scope – Refusal to grant access – Whether permissible

   (European Central Bank Decision 2004/258, as amended by Decisions 2011/342 and 2015/529, Art. 4(2), (3) and (5))

   (see paragraphs 60, 62, 64)

3. EU institutions – Right of public access to documents – Decision 2004/258 of the European Central Bank – Exceptions to the right of access to documents – Protection of documents for internal use – Conditions – Difference in relation to Regulation No 1049/2001

   (European Parliament and Council Regulation No 1049/2001, Art. 4(3); European Central Bank Decision 2004/258, as amended by Decisions 2011/342 and 2015/529, Art. 4(3), first subpara.)

   (see paragraphs 67-71, 74, 75)

Résumé

By decision of 16 October 2017, the European Central Bank (ECB) refused to grant the appellants, Mr Fabio de Masi and Mr Yanis Varoufakis, access to the document entitled ‘Responses to the questions concerning the interpretation of Article 14.4 of the Protocol on the Statute of the European Central Banks System and of the European Central Bank’. That document included the response from an external adviser to a legal consultation requested by the ECB concerning the powers held by the Governing Council under said Article 14.4. The ECB refused to grant access to that document on the basis of (i) the exception relating to the protection of legal advice, provided for in the second indent of Article 4(2) of Decision 2004/258, ( 1 ) and (ii) the exception relating to the protection of documents intended for internal use, provided for in the first subparagraph of Article 4(3) of that decision.

The action brought by the appellants before the General Court against that decision of the ECB was dismissed as unfounded. ( 2 ) The General Court held that the ECB was fully entitled to base its refusal to grant access to the document at issue on the exception concerning the protection of documents for internal use, provided for in the first subparagraph of Article 4(3) of Decision 2004/258.

On hearing the appeal brought by the appellants against the judgment of the General Court, the Court upholds the General Court’s analysis regarding the application of that exception in the present case and dismisses the appeal.

Findings of the Court

First of all, the Court finds that, in the present case, the General Court did not fail to fulfil its obligation to state reasons. In that regard, it notes that, while the second subparagraph of Article 4(3) of Regulation No 1049/2001 ( 3 ) requires it to be established that disclosure of the document would seriously undermine the institution’s decision-making process, that is not a requirement in connection with the exception provided for in the first subparagraph of Article 4(3) of Decision 2004/258. It concludes from this that the General Court was under no obligation to assess whether the ECB had provided explanations as to how granting access to the document at issue could lead to its decision-making process being seriously undermined. It notes that refusal to grant access to a document on the basis of that provision of Decision 2004/258 requires only that it be established, first, that that document is, inter alia, for internal use as part of deliberations and preliminary consultations within the ECB, and, secondly, that there is no overriding public interest in disclosure of that document.

Next, the Court takes the view that the General Court did not misconstrue the scope of the second indent of Article 4(2) and the first subparagraph of Article 4(3) of Decision 2004/258. In the first place, the wording of the second indent of Article 4(2) of that decision contains no indications which might confer on it the character of lex specialis in relation to the first subparagraph of Article 4(3) of that decision. In the second place, nothing in the wording of Article 4 of Decision 2004/248 precludes the same part of a document from being covered by more than one of the exceptions referred to therein. In the third place, it is irrelevant, for the purpose of applying the exception referred to in the first subparagraph of Article 4(3) of Decision 2004/258, that the document at issue may also be classified as ‘legal advice’ within the meaning of the second indent of Article 4(2) of that decision, since the legislature of the European Union did not make the possibility of relying on the exception set out in the first subparagraph of Article 4(3) of Decision 2004/258 conditional on the document at issue not being ‘legal advice’, within the meaning of the second indent of Article 4(2) of that decision.

Lastly, the Court confirms the interpretation adopted by the General Court of the first subparagraph of Article 4(3) of Decision 2004/258, stating that that provision cannot be read as reserving the protection contained in it only to documents linked to a specific decision-making process. That provision requires only that a document be used as part of deliberations and preliminary consultations within the ECB and has the effect of covering, in a broad manner, documents linked to the ECB’s internal processes. In addition, the Court notes that the scope of that provision is different from that of Article 4(3) of Regulation No 1049/2001. First, the purpose of the protection is not the same and, secondly, while that provision of Regulation No 1049/2001 makes refusal to grant access to a document conditional upon that document relating to a matter where the decision has not been taken by the institution, the first subparagraph of Article 4(3) of Decision 2004/258 does not contain such a precision and specifically provides that access to the document is to be refused even after the decision has been taken.

( 1 ) Decision 2004/258/EC of the European Central Bank of 4 March 2004 on public access to European Central Bank documents (ECB/2004/3) (OJ 2004 L 80, p. 42), as amended by Decision 2011/342/EU of the European Central Bank of 9 May 2011 (ECB/2011/6) (OJ 2011 L 158, p. 37) and Decision (EU) 2015/529 of the European Central Bank of 21 January 2015 (ECB/2015/1) (OJ 2015 L 84, p. 64).

( 2 ) Judgment of 12 March 2019, De Masi and Varoufakis v ECB (T‑798/17, EU:T:2019:154).

( 3 ) 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 (OJ 2001 L 145, p. 43).