18.4.2017

Official Journal of the European Union

C 121/44

Action brought on 20 February 2017 — Spiegel-Verlag Rudolf Augstein and Sauga v ECB

(Case T-116/17)

(2017/C 121/64)

Language of the case: German

Parties

Applicants: Spiegel-Verlag Rudolf Augstein GmbH & Co. KG (Hamburg, Germany) and Michael Sauga (Berlin, Germany) (represented by: A. Koreng and T. Feldmann, lawyers)

Defendant: European Central Bank (ECB)

Form of order sought

The applicants claim that the Court should:

—

annul the decision, notified by letter of 15 December 2016, of the Board of Directors of the European Central Bank, by which the applicants’ request for access to the two European Central Bank documents ‘The impact on government deficit and debt from off-market swaps. The Greek case’ (SEC/GovC/X/10/88a) and ‘The Titlos transaction and possible existence of similar transactions impacting on the euro area government debt or deficit levels’ (SEC/GovC/X/10/88b) was rejected;

—	order the European Central Bank to pay the costs.

Pleas in law and main arguments

In support of the action, the applicants rely on two pleas in law

First plea in law, alleging misapplication of the second indent of Article 4(1)(a) of Decision ECB/2004/3 (1)

The applicants claim that the ECB has failed to show in sufficient detail that disclosure of the documents concerned would undermine the protection of the public interest as regards the financial, monetary or economic policy of the European Union or of a Member State.

The risk of detriment to the public interest claimed by the ECB is, they submit, more than six years after the documents were drafted and after a fundamental change in the surrounding circumstances, no longer a matter giving rise to actual concern.

Second plea in law, alleging misapplication of Article 4(3) of Decision ECB/2004/3

—	The applicants submit that the documents in question did not serve as preparation for actual decisions but only for general opinion-forming and information purposes within the ECB.

—	Furthermore, it also cannot be assumed that ECB employees would allow themselves to be intimidated by the possibility that the documents might be disclosed.

—	Moreover, as matters stand, in light of the documents at issue in the present case, there is no fear of improper third-party influence over the deliberations of the ECB.

—	Additionally, the ECB has not sufficiently weighed and taken into consideration the public interest in access to the information.

—	Finally, it is not for the ECB to assess how the public debate can be enriched; rather, that is a role for the press as part of the ‘watchdog function’ which the European Court of Human Rights has recognised it as possessing.

(1) 2004/258/EC: Decision of the European Central Bank of 4 March 2004 on public access to European Central Bank documents (ECB/2004/3) (OJ 2004 L 80, p. 42).