Summary

On the 22^nd of March 2023, the General Court annulled an decision adopted by the European Central Bank (ECB) on November 2019 by which the EU institution rejected the request of a Maltese Bank, Satabank, for access to the file concerning it. The judgment clarifies that – within the Single Supervisory Mechanism (SSM) – a distinct right of access to the file exists only in relation to a specific supervisory procedure and thus not in relation to ongoing prudential supervision. Nevertheless, whenever a supervised entity, which is not subject to a specific supervisory procedure, requests ‘access to the file’, the ECB may be under an obligation to assess such a request also against the general – transparency aiming – public access to ECB documents regime.

Factual background

Satabank plc was a Maltese bank, which – under the SSM Regulation – had been classified as a less significant institution. On 16 November 2019, Satabank requested from the ECB access to the file concerning it. On 26 November 2019, the ECB refused to grant such an access on the grounds that the credit institution was not subject to a supervisory procedure within the meaning of the SSM Regulation. A few months later, in February 2020, the Maltese national competent authority (MFSA), which was responsible for the day-to-day supervision of Satabank, submitted a draft decision to the ECB proposing the withdrawal of Satabank’s authorization. Subsequently, in March 2020, the ECB notified the bank’s lawyer of the aforementioned draft decision and invited Satabank to comment in writing. In the course of April, May and June 2020 the ECB granted three times the right of access to the file to the supervised credit institution. The procedure culminated in an ECB decision by which the EU institution withdrew the applicant’s authorization on 30 June 2020.

Pleas in law

The action for annulment concerned the ECB’s decision of 26 November 2019 rejecting the applicant’s access to the file. To that effect, Satabank brought forward eight pleas in law. By its first plea, which was ultimately upheld by the Court, the applicant alleged failure on the ECB’s part to recognize the existence of a primary substantive right of access to the file. While the present blogpost shall focus on this first plea,  it is worth noting that the rest of the pleas concerned the following issues: the violation of the ECB’s obligation to state reasons, the interpretation of the right of access to the file under Article 32(1) of the SSM Framework Regulation, the infringement of the right to be heard, of the principles of legal certainty, proportionality and nemo auditur and the infringement of the right to an effective remedy.

The parties’ arguments and the General Court’s decision

The General Court upheld the first plea in law whereby the applicant claimed, in essence, that the ECB was obliged to review Satabank’s request for access against general principles relating to access to documents. More specifically against Article 42 of the Charter of Fundamental Rights, Article 15(3) TFEU and ECB Decision 2004/258 concerning public access to ECB documents. In other words, according to the applicant, even if Satabank was not subject to a particular ECB supervisory procedure, the ECB was still under an obligation to examine granting access to files based on the public access to ECB documents regime.

The ECB rejected that line of argumentation. It pointed at case law which suggests that the right of access to the file and the general regime for access to documents serve two distinct purposes. Firstly, the right of access to the file in the context of an administrative procedure, a fundamental right under Article 41 of the Charter, aims at preserving the rights of the defense and at ensuring due process and, secondly, the general regime for access to the documents, which is a fundamental right under Article 42 of the Charter, aims at ensuring transparency. Moreover, the ECB argued that since in their request the applicant had used the terms ‘access to file’, it logically followed that the request should have been examined only in light of Article 32 SSM Framework Regulation and not in light of the general access to ECB documents regime.

While the General Court agreed that the two regimes serve distinct objectives, it did note that, in essence, the two regimes ‘lead to a comparable situation from a functional point of view’. Furthermore, responding to the ECB’s tacit argument that Satabank had not invoked a particular legal basis when requesting access to the file, the General Court noted that, under the relevant EU legislation, a person requesting access to documents is not required to specify the legal basis for his or her request. According to the Court, this is in line with the objective pursued by EU acts granting general access to documents, namely to ensure the widest possible access. All in all, the Court found that since no supervisory proceeding was pending at the time of Satabank’s request and therefore no ‘file’ within the meaning of Article 32 of the SSM Framework Regulation existed, the ECB should have examined the bank’s request in light of the general access to documents regime. By not doing so, the General Court found that the ECB had erred in law.

Repercussions

As noted by Lupinu, the decision of the General Court may prompt the ECB to amend Decision 2004/58 and the conditions regarding general access to ECB documents. For instance, it is not inconceivable that the ECB may amend the aforementioned decision and require from persons requesting access to documents under the general transparency regime to explicitly invoke the term ‘access to documents’ instead of ‘access to file’.

In addition, the Satabank judgment is expected to have significant ramifications for the day-to-day work of EU law enforcement authorities, many of which are entrusted with direct monitoring investigative and sanctioning powers vis-à-vis individuals and economic actors. The ECB, ESMA, OLAF and the Commission’s Directorate General for Competition (DG COMP) are only but a few examples in that respect. Whenever receiving a request for access to the file under Article 41 of the Charter from a private party, even if that request is rejected for a valid reason – for instance, because the person requesting access to the file is not subject to a particular administrative procedure – EU enforcement authorities may now be under an obligation to additionally examine such a request under general access to documents regimes.

Posted by Dr. Argyro Karagianni, Assistant professor of EU Economic Law, Utrecht University

Suggested citation: A. Karagianni, ‘You don’t have a right of access to the file, but you may have a right of access to documents: T-72/20 Satabank v ECB’ REALaw.blog available at https://realaw.blog/?p=2793