ABLV Bank AS v European Central Bank (T-100/23)

Contents

Judgment of the General Court (Seventh Chamber)4 June 2025^note(Access to documents — Decision 2004/258/EC — Documents relating to the announcement of a United States authority (FinCEN) concerning ABLV Bank — Partial refusal of access — Exception relating to the protection of the confidentiality of information that is protected as such under EU law — Exception relating to the protection of documents for internal use — Exception relating to the protection of exchanges of views between the ECB and the relevant authorities — Sufficiently precise nature of an application for access — Duty of the ECB to provide assistance — Article 6(1) and (2) of Decision 2004/258)In Case T‑100/23,ABLV Bank AS, established in Riga (Latvia), represented by O. Behrends, lawyer,vEuropean Central Bank (ECB), represented by F. von Lindeiner, D. Báez Seara and J. Ruiz Jiménez, acting as Agents,THE GENERAL COURT (Seventh Chamber),composed of K. Kowalik-Bańczyk, President, E. Buttigieg and G. Hesse (Rapporteur), Judges,Registrar: V. Di Bucci,having regard to the written part of the procedure,having regard to the measure of organisation of procedure of 5 June 2024 and the respective responses of the applicant and the ECB lodged on 21 June 2024,having regard to the measure of inquiry of 18 June 2024 and the response of the ECB lodged at the Court Registry on 3 July 2024,having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,gives the following

JudgmentOnly the paragraphs of the present judgment which the Court considers it appropriate to publish are reproduced here.

1By its action under Article 263 TFEU, the applicant, ABLV Bank AS, seeks the annulment of Decision LS/CL/2022/261 of the European Central Bank (ECB) of 8 December 2022 rejecting its application for access to documents (‘the contested decision’).

Background to the dispute

7On 25 May 2022, the applicant made an application for access to documents to the ECB. It requested access to:– any document relating, directly or indirectly, to the Financial Crimes Enforcement Network (FinCEN) and/or other parts of, or officials from other parts of, the United States Treasury Department or other United States authorities or authorities in the United States and/or the applicant and/or its Luxembourg subsidiary;– any document containing communications, directly or indirectly, with FinCEN and/or FinCEN officials and/or other parts of, or officials from other parts of, the United States Treasury Department or other United States authorities or authorities in the United States;– any document relating, directly or indirectly, to the Korupcijas novēršanas un apkarošanas birojs (Corruption Prevention and Combating Bureau, Latvia; ‘the KNAB’) decision, the facts referenced by the KNAB decision and/or the factual findings in the KNAB decision, irrespective of whether such communications occurred before or after the FinCEN announcement;– any document relating, directly or indirectly, to acts or omissions of the ECB, the Single Resolution Board (SRB), the Finanšu un kapitāla tirgus komisija (Financial and Capital Markets Commission, Latvia; ‘the FCMC’), FinCEN or any other authority following the FinCEN announcement or prior to the FinCEN announcement;– any document relating, directly or indirectly, to Euroclear regarding its role in relation to the applicant and/or its Luxembourg subsidiary, including, without limitation, any communication between the ECB and/or the SRB and Euroclear relating directly or indirectly to the applicant and/or its Luxembourg subsidiary;– any other document relating, directly or indirectly, to the applicant and/or its Luxembourg subsidiary....

11On 8 August 2022, the ECB sent the applicant an email informing it that the application for access would be processed in two batches. According to that email, the first batch covers the documents referred to in the first three indents of the application for access set out in paragraph 7 above. It stated that the second batch covers the documents referred to in the three other indents set out in that paragraph. As regards the first batch, the ECB extended the time limit for reply pursuant to Article 7(1) of Decision 2004/258. As regards the second batch, the ECB considered that the application for access was not sufficiently precise within the meaning of Article 6(1) of Decision 2004/258. The ECB then asked the applicant, in accordance with Article 6(2) of Decision 2004/258, to indicate the specific subject matter or topics of interest to it and a limited timeframe. The ECB informed the applicant that the processing of the second batch was put on hold until the scope of the application for access was specified.

12By email of 13 September 2022, the ECB communicated to the applicant its initial decision, adopted under reference LS/PS/2022/48. By the same email, it informed the applicant that the final three indents of the application for access were not sufficiently precise within the meaning of Article 6(1) of Decision 2004/258 and asked it, in accordance with Article 6(2) of that decision, to indicate the specific subject matter or topics of interest to it and a limited timeframe. In its initial decision, the ECB stated, inter alia, that, after examining the first three indents of the application for access referred to in paragraph 7 above, it had identified nine documents of relevance under the first two indents. By contrast, no ECB document corresponding to the third indent could be identified. According to the ECB, two of the relevant documents were publicly available (Documents No 1 and No 2 below) and full or partial access to the seven other documents had to be refused (Documents No 3 to No 9 below)....

14On 11 October 2022, the applicant made a confirmatory application to the ECB, in accordance with Article 7(2) of Decision 2004/258. In particular, it requested that the ECB reconsider its position and complete the list of documents relating to the application for access. In addition, the applicant requested, pursuant to Article 41(2)(b) of the Charter of Fundamental Rights of the European Union, access to the file relating to the ongoing procedure in the context of its application for access to documents.

15On 8 December 2022, the ECB adopted the contested decision....

Forms of order sought

22The applicant claims that the Court should:– annul the contested decision;– order the ECB to pay the costs.

23The ECB contends that the Court should:– dismiss the action;– order the applicant to pay the costs.

Law

24In support of the action, the applicant relies on five pleas in law. The first plea alleges that the list of documents identified by the ECB is incomplete. The second plea alleges that, as regards Documents No 1 and No 2, the ECB incorrectly referred to the FinCEN website. The third plea alleges that the ECB’s refusal to grant access to Documents No 3 to No 9 is unlawful. The fourth plea alleges failure to grant the applicant access to the file. The fifth plea alleges unlawful suspension of the procedure for access to documents with respect to the second batch....

The fifth plea in law, alleging unlawful suspension of the procedure with respect to the second batch of documents relating to the application for access

151The applicant claims that the ECB was not entitled to discontinue the processing of the second batch of documents corresponding to the final three indents of the application for access. First of all, it submits that the contested decision does not contain a sufficient statement of reasons in that regard. Next, it highlights the fact that, although the ECB considers that the application for access is not sufficiently precise within the meaning of Article 6(1) of Decision 2004/258, that provision does not allow the processing of the application for access to be discontinued, that is to say, it does not permit a suspension of the time limits set down by Decision 2004/258. In addition, the applicant states that it did not respond to the ECB’s email of 8 August 2022 asking it to clarify its application for access, because it was not required to do so. The applicant regarded this as a delaying tactic. Lastly, the applicant submits that there is nothing in Article 6(2) and (3) of Decision 2004/258 to indicate that a supposed lack of precision or an allegedly large number of documents could have any relevance for the time limits or the implied negative decision rule laid down in Article 8(3) of Decision 2004/258.

152The ECB contends, in essence, that the fifth plea in law is inadmissible, ineffective and, in any event, unfounded. It maintains that it asked the applicant, pursuant to Article 6(1) and (2) of Decision 2004/258, to clarify the subject matter of the final three indents of its application for access by means of two emails sent on 8 August and 13 September 2022, respectively. It argues that the applicant did not respond in that regard in its confirmatory application. The ECB contends that the present plea in law is inadmissible in so far as it is not directed against the contested decision, but against the email of 8 August 2022. In its submission, that plea is unrelated to the subject matter of the proceedings and the ECB is therefore unable to prepare its defence. Moreover, the applicant is time-barred from challenging that email. In any event, the ECB maintains that it acted in accordance with Article 6(1) and (2) of Decision 2004/258 by characterising the final three indents of the application for access as insufficiently precise and by requesting further clarifications.

The pleas of inadmissibility raised by the ECB

153In the first place, as regards the plea of inadmissibility alleging that the present plea in law, which concerns the final three indents of the application for access, is unrelated to the subject matter of the proceedings, the applicant correctly submits that Article 6(1) of Decision 2004/258, the wording of which is reproduced in paragraph 171 below, does not allow the processing of an application for access to be discontinued or, in other words, does not permit a ‘suspension’ of the time limits set down in Articles 7 and 8 of Decision 2004/258. Those time limits, laid down in the public interest, cannot be varied by the parties (see, by analogy, judgment of 2 October 2014, Strack v Commission, C‑127/13 P, EU:C:2014:2250, paragraph 24).

154In the present case, however, it must be noted that, in the contested decision, the ECB stated the following:‘… In [the initial decision], the Director-General addressed the first batch of your public access request (the first three items of your initial application). Addressing the remaining items from your initial application was put on hold subject to further clarification from you. This means that your confirmatory application can only be assessed in so far as it concerns the non-disclosure of documents identified in the [initial decision]. … Finally, we would like to remind you that [in order] to process a second batch of documents falling within the scope of your initial application, your input is still necessary.’

155In that regard, footnote 2 to the contested decision refers to the ECB emails sent to the applicant on 8 August and 13 September 2022, and states: ‘Since your confirmatory application was following up on the same emails, the ECB concludes that you received the correspondence and chose not to take the opportunity to provide clarification.’

156It is apparent from the file that, in the email of 8 August 2022, the ECB stated:‘As for the second batch covering the three remaining items of your request … we note that their scope is extremely broad and general and, as such[,] the request is not sufficiently precise within the meaning of Article 6(1) of Decision [2004/258]. Therefore[,] in line with Article 6(2) of th[at] [d]ecision, we kindly invite you to indicate specific subject matter(s) or topic(s) of interest in relation to ABLV Bank and a limited timeframe.’

157That finding was reiterated in the same terms by the ECB in its email of 13 September 2022.

158It follows that, even though, in the contested decision, the ECB stated that the processing of the final three indents of the application for access had been ‘put on hold’, that statement did not prevent it from examining the scope of that part of the application in order to conclude, in essence, that that application was not sufficiently precise to enable the ECB to understand which documents it concerned. In so doing, the ECB considered, in fact, that the final three indents of the application for access did not satisfy the conditions laid down in Article 6(1) of Decision 2004/258, which the applicant is entitled to challenge in the context of the present action against the contested decision.

159In addition, contrary to what the ECB suggests, it is apparent from the application and from the defence, respectively, that the applicant’s arguments concerning the second batch of documents relating to the final three indents of the application for access are intelligible and that the ECB has been able to respond to them. The Court has also had no difficulty in understanding the applicant’s arguments on reading the application.

160Accordingly, the plea of inadmissibility raised by the ECB, alleging that the present plea in law is unrelated to the subject matter of the proceedings, cannot be upheld....

Substance

...

–Infringement of Article 6(1) and (2) of Decision 2004/258

170Given that the ECB considered that the final three indents of the application for access did not satisfy the conditions laid down in Article 6(1) of Decision 2004/258, it must be examined, first, whether that part of the application for access was sufficiently precise within the meaning of Article 6(1) of that decision and, second, whether the ECB complied with its duty to provide assistance referred to in Article 6(2) of that decision.

171In the first place, in accordance with Article 6(1) of Decision 2004/258, the application for access had to be made in a manner that was ‘sufficiently precise … to enable the [institution] to identify the document [requested]’. It must be pointed out that the amount of work entailed by the exercise of the right of access and the interest of the applicant for access are, in principle, irrelevant (see, to that effect, judgment of 13 April 2005, Verein für Konsumenteninformation v Commission, T‑2/03, EU:T:2005:125, paragraph 108).

172It is therefore necessary to determine, in the light of the wording of the application for access, whether the ECB was in a position to identify the documents requested, whatever their number or the interest pursued by the applicant.

173In that regard, the final three indents of the application for access concerned:– any document relating, directly or indirectly, to acts or omissions of the ECB, the SRB, the FCMC, FinCEN or any other authority following the FinCEN announcement or prior to the FinCEN announcement;– any document relating, directly or indirectly, to Euroclear regarding its role in relation to the applicant and/or its Luxembourg subsidiary, including, without limitation, any communication between the ECB and/or the SRB and Euroclear relating directly or indirectly to the applicant and/or its Luxembourg subsidiary;– any other document relating, directly or indirectly, to the applicant and/or its Luxembourg subsidiary.

174In view of the general wording of the final three indents of the application for access, the ECB was legitimately entitled to request clarification in relation to those categories of documents. As the ECB correctly contends, in the light of the wording of the final three indents of the application for access and, in particular, in the absence of a limited timeframe, it was not possible to ascertain whether that part of the application concerned documents relating to the FinCEN announcement or to other supervisory matters.

175In the second place, it must be determined whether the ECB complied with its duty to provide assistance (judgment of 10 September 2008, Williams v Commission, T‑42/05, not published, EU:T:2008:325, paragraphs 74 to 78).

176According to Article 6(2) of Decision 2004/258, ‘if an application is not sufficiently precise, the ECB shall ask the applicant to clarify the application and shall assist the applicant in doing so.’ According to the case-law, the verbs ‘ask’ and ‘assist’ indicate that whenever the institution to which the application is addressed encounters a lack of clarity in an application for access, for whatever reason, it must contact the applicant in order to define the documents sought as well as possible. The provision is thus one which, in the field of public access to documents, formally translates the principle of sound administration, which is one of the guarantees afforded by the legal order of the European Union in administrative procedures. The duty to provide assistance is therefore fundamental to ensuring the effectiveness of the right of access defined by Decision 2004/258 (see judgment of 26 October 2011, Dufour v ECB, T‑436/09, EU:T:2011:634, paragraph 30 and the case-law cited).

177In the present case, it must be noted that, by an email of 8 August 2022, the ECB informed the applicant that the final three indents of its application for access were not sufficiently precise and invited it to indicate one or more specific subjects of interest to it and a limited timeframe. By an email of 13 September 2022, the ECB repeated that request in the same terms.

178The confirmatory application states as follows: ‘… The scope of [the applicant’s] request for access comprises, inter alia, all documents related directly or indirectly to [the applicant] or to its Luxembourg subsidiary … I specifically request that you complete the list of documents …’ It did not indicate anything else in relation to the final three indents of the application for access. Nor did it expressly dispute that the application for access was not sufficiently precise within the meaning of Article 6(1) of Decision 2004/258.

179In the light of the information set out in paragraphs 177 and 178 above, the ECB carried out its duty to provide assistance, since it asked the applicant to clarify the application for access by indicating to the ECB the timeframe and the subject matter of interest to the applicant. However, the applicant did not provide the ECB with any meaningful information to enable it to identify specific documents corresponding to that application. The applicant merely repeated, without any further clarification, the wording of the sixth indent of the application for access and remained silent as to the fourth and fifth indents of that application. Moreover, in paragraphs 182 to 185 of the application, the applicant explained that it had not wished to respond to the ECB’s request for clarification, since it regarded this as a delaying tactic which would have resulted in excessive legal costs. However, since the wording of the final three indents of the application for access was indeed not sufficiently precise in that it did not refer to any particular subject matter or to any specific timeframe, there was no reason to consider that this was a delaying tactic on the part of the ECB.

180Although, as the applicant submits, the amount of work entailed by the exercise of the right of access to documents and the interest of the applicant for access are, in principle, irrelevant for the purpose of varying the scope of that right, the fact remains that, since its application for access was insufficiently precise, the applicant could not refrain from clarifying its application without running the risk of the ECB finding that that application did not satisfy the conditions laid down in Article 6(1) of Decision 2004/258 (see, to that effect, order of 7 September 2009, LPN v Commission, T‑186/08, not published, EU:T:2009:309, paragraph 62).

181In the present case, the lack of clarification on the applicant’s part is not the result of its inability to identify the documents which allegedly contain the information it is seeking, but rather is the result of its lack of willingness to clarify the application for access.

182It follows, first, that the ECB was correct in considering that the final three indents of the application for access did not satisfy the conditions laid down in Article 6(1) of Decision 2004/258 and, accordingly, could not be regarded as an ‘application for access’ within the meaning of that provision and, second, that the ECB duly carried out its duty to provide assistance pursuant to Article 6(2) of Decision 2004/258.

183Consequently, the fifth plea in law, alleging unlawful suspension of the procedure with respect to the second batch of documents relating to the application for access, must be rejected....

Operative part

On those grounds,THE GENERAL COURT (Seventh Chamber)hereby:

1.Dismisses the action;

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

Delivered in open court in Luxembourg on 4 June 2025.