Case T‑72/20

Satabank plc

v

European Central Bank (ECB)

Judgment of the General Court (First Chamber, Extended Composition), 22 March 2023

(Economic and monetary policy – Prudential supervision of credit institutions – Regulation (EU) No 1024/2013 – Regulation (EU) No 468/2014 – Supervised entity – Composite administrative procedure – Denial of access to the file – Directive 2004/258/EC – Access to ECB documents)

1. Acts of the EU institutions – Statement of reasons – Obligation – Scope – Decision of the European Central Bank (ECB) refusing the applicant access to the file concerning that person – Judicial review

   (Art. 296 TFEU; Charter of Fundamental Rights of the European Union, Art. 41(2)(c))

   (see paragraphs 45, 47)

2. Economic and monetary policy – Economic policy – Supervision of the EU financial sector – Single Supervisory Mechanism – Prudential supervision of credit institutions – Respect of rights of the defence – Right of access to the file of the European Central Bank (ECB) – Condition – Opening of a specific supervisory procedure by the ECB

   (Charter of Fundamental Rights of the European Union, Art. 41(2); Council Regulation No 1024/2013, Art. 22; European Central Bank Regulation No 468/2014, Art. 32)

   (see paragraphs 61-66, 79-82, 87, 92, 97)

3. Economic and monetary policy – Economic policy – Supervision of the EU financial sector – Single Supervisory Mechanism – Prudential supervision of credit institutions – Respect of rights of the defence – Right of access to the file of the European Central Bank (ECB) – No pending supervisory procedure – Examination of the application for access on the basis of the provisions on access to documents laid down in Decision 2004/258 of the ECB

   (European Central Bank Regulation No 468/2014, Art. 32; European Central Bank Decision 2004/258, Arts 2(1) and 6(1))

   (see paragraphs 122-134)

Résumé

At the time its action was brought, the applicant, Satabank plc, was a credit institution under Maltese law, which had been classified as a less significant institution for the purposes of Regulation No 1024/2013, ( 1 ) and was directly supervised by the Malta Financial Services Authority (MFSA).

On 16 November 2019, the applicant requested access to the file concerning it from the European Central Bank (ECB). By decision of 26 November 2019, the ECB refused the request for access, stating that the applicant was not the subject of proceedings within the meaning of Article 22 of the SSM Regulation ( 2 ) and that, as a consequence, no access to any file could be granted to it pursuant to Article 32(1) of Regulation (EU) No 468/2014. ( 3 ) ( 4 )

On 5 February 2020, the applicant brought an action before the General Court seeking annulment of that decision of the ECB. It submitted, inter alia, that the ECB refused access to its file based on an unduly narrow interpretation of Article 32(1) of the SSM Framework Regulation and that it was required to process its request for access on the basis of the general principles relating to access to documents.

On 12 February 2020, the MFSA submitted to the ECB a draft decision proposing the withdrawal of the applicant’s authorisation. ( 5 ) On 16 March 2020, the ECB notified the applicant of a draft decision withdrawing its authorisation. On 30 June 2020, the ECB adopted a decision withdrawing the applicant’s authorisation as a credit institution, which the applicant subsequently sought annulment of before finally withdrawing its appeal.

By its judgment delivered in extended composition, the Court annulled the decision of the ECB rejecting the applicant’s request for access to the file concerning it. This case gives the Court the opportunity to interpret, for the first time, Article 32 of the SSM Framework Regulation, read in conjunction with Article 22 of the SSM Regulation, and to rule on the applicability of the general rules on access to documents in the context of those provisions.

Findings of the Court

First, the Court examines the plea alleging, in essence, that the contested decision is based on an incorrect interpretation of Article 32(1) of the SSM Framework Regulation. According to the applicant, this provision must be interpreted as giving each bank a right of access to its file simply based on the ongoing supervisory relationship with the ECB. It adds that it is not necessary that the ECB is currently considering a specific step for access to the file to be granted. The applicant further argues that there is an ongoing supervisory procedure from the point in time at which a licence is granted until it is revoked.

In that connection, the Court recalls that a request for access to a file is based on the exercise of the rights of the defence. 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. Accordingly, Article 32(1) of the SSM Framework Regulation expressly uses the expression ‘supervisory procedure’ and not ‘prudential supervision’. The SSM Framework Regulation ( 6 ) defines the ‘ECB supervisory procedure’ as ‘any ECB activity directed towards preparing the issue of an ECB supervisory decision …’. Consequently, prudential supervision with regard to the ECB’s tasks cannot be equated with a supervisory procedure, aimed at performing a specific supervisory task and taking a decision thereon. According to the Court, if the scope of prudential supervision were identical to that of the supervisory procedure, there would never be a supervisory procedure, as it would necessarily always be pending in the context of ongoing prudential supervision. The mere persistence of prudential supervision, without a specific pending supervisory procedure, cannot be regarded as justifying access to the file under Article 32 of the SSM Framework Regulation.

Furthermore, it cannot be assumed that the authorisation withdrawal procedure is already pending after the authorisation has been granted. In the present case, there is nothing to suggest that, on the date on which the applicant lodged its request for access, namely on 16 November 2019, a supervisory procedure before the ECB was pending in respect of the applicant. At that stage, the Court notes that the ECB had not taken any supervisory measure concerning the applicant and that the draft decision proposing the withdrawal of the applicant’s authorisation was submitted to the ECB by the MFSA on 12 February 2020. The applicant was informed by the ECB of its intention to take a decision withdrawing that authorisation on 16 March 2020. It follows that the applicant has not established that the ECB made an error of assessment in finding, in the contested decision, that no supervisory procedure had been initiated on the date the contested decision was adopted, namely 26 November 2019.

Second, the Court addresses the plea alleging, in essence, that the ECB was required to process the applicant’s request for access on the basis of the general principles relating to access to documents. Thus, the applicant submits that the existence of a supervisory procedure is not relevant because access in any case needed to be granted on grounds of public access to documents, irrespective of the existence of any supervisory procedure. According to the ECB, the applicant based its request for access on Article 32 of the SSM Framework Regulation in so far as it used the terms ‘access to the file’. Accordingly, it claims that the applicant’s request therefore cannot be examined in terms of the general regime for access to documents.

In that connection, the Court notes that Decision 2004/258 ( 7 ) 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. A person requesting access is not required to justify that request and therefore does not have to demonstrate any interest in having access to the documents requested. ( 8 ) It follows that a request for access which falls within the scope of Decision 2004/258 and which is made by a person who relies on certain specific circumstances which distinguish him or her from any other EU citizen must nevertheless be examined in the same way as an application from any other person.

In the present case, the Court observes that, by its request for access, the applicant requested access to the ‘file’ concerning it without making reference to any legal basis for its request. It is common ground that no provision of Decision 2004/258 requires the applicant for access to specify the legal basis of that request. Consequently, even though the applicant did use the term ‘file’ in its request, the ECB could not conclude that the request for access was based solely on Article 32 of the SSM Framework Regulation.

Moreover, it is clear from the case-law that the fact that the request for access concerned a ‘file’ of the ECB relating to a credit institution, that is to say, a field governed by the SSM Regulation and the SSM Framework Regulation, does not preclude that request from being based, at the outset, on the general provisions on access to documents, since it is common ground that the latter may serve as the legal basis for a request for access to documents relating to an administrative procedure governed by another EU act.

In the present case, since no supervisory procedure was pending in respect of the applicant at the time of its request for access, and therefore no ‘file’ within the meaning of Article 32 of the SSM Framework Regulation exists, that request should be examined as a request for access to documents concerning it on the basis of the general provisions, in particular Decision 2004/258. Therefore, the Court holds that the ECB erred in law in failing to examine the applicant’s request on the basis of the provisions on access to documents laid down in Decision 2004/258. Consequently, the Court upholds that plea and annuls the contested decision.

( 1 ) 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’).

( 2 ) It follows from Article 22(2) of the SSM Regulation that the rights of defence of the persons concerned are fully respected in the proceedings and that those persons are entitled to have access to the ECB’s file.

( 3 ) 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 (OJ 2014 L 141, p. 1; ‘the SSM Framework Regulation’).

( 4 ) The first and second sentences of Article 32(1) of the SSM Framework Regulation provide that ‘the rights of defence of the parties concerned shall be fully respected in ECB supervisory procedures’ and that, ‘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 …’.

( 5 ) Pursuant to Article 14(5) of the SSM Regulation and Article 80 of the SSM Framework Regulation.

( 6 ) Article 2(24) of the SSM Framework Regulation.

( 7 ) Article 2(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 amended by Decision (EU) 2015/529 of the European Central Bank of 21 January 2015 (OJ 2015 L 84, p. 64) (as amended, ‘Decision 2004/258’).

( 8 ) According to Article 6(1) of Decision 2004/258.