On 22 March 2023, in its judgment T-72/20 Satabank v. European Central Bank, the General Court of the EU (the “General Court”) annulled a decision of the European Central Bank (the “ECB”) rejecting access to a file requested by Satabank plc (the “Bank”). At the time the complaint was lodged, Satabank was a credit institution under the law of Malta, which had been classified as a “less significant institution” under Council Regulation (EU) No. 1024/2013 of 15 October 2013 (the “Regulation”). As such, it was directly supervised by the Malta Financial Services Authority (the “Maltese Authority”).
Background to the dispute
In the context of an inquiry started in 2018 by the Maltese Authority under the Regulation, the Bank had requested to access the ECB’s administrative file. However, as, in conformity with the Regulation, the Maltese Authority was in charge of such inquiry, on 26 November 2019, the ECB denied access on grounds that Article 22 of the Regulation grants a right of access to an administrative file only in the framework of an ongoing ECB investigation, whereby the parties should be granted their right of defence.
At the end of its enquiry, in conformity with the Regulation, the Maltese Authority submitted to the ECB a draft decision of withdrawal of the Bank’s authorisation as a credit institution. The ECB notified such draft decision to the Bank, pursuant to which the Bank eventually obtained access to the file. Following formal adoption of the withdrawal decision on 30 June 2020, the Bank sought its annulment, which it subsequently discontinued, the action for the annulment of the ECB’s decision denying access to the administrative file being still pending.
The issues at stake
The judgment of the General Court focuses on composite administrative decision-making, combining actions carried out and acts adopted at both the EU and national levels, and the difference between the right of access to an administrative file and the more general access to documents of EU institutions and authorities.
The latter has actually a procedural nature, as it is intended to preserve the rights of defence and due process before the EU, as it is the case of Article 22 of the Regulation. Conversely, the purpose of the former is to ensure the principle of transparency, as set out in Article 15 of the Treaty on the Functioning of the EU (the “TFEU”), in turn enacted in Decision 2004/258/EC of the ECB of 4 March 2004 on public access to ECB’s documents (the “ECB Access Decision”). The general regime also aims at protecting the fundamental right to access documents of the EU institutions and authorities, as embodied in Article 42 of the Charter of Fundamental Rights of the EU (the “CFR”).
The argument of the ECB to dismiss the Bank’s access request relied on the definition of an administrative file, as the set of documents collected by the ECB in the context of a supervisory procedure under the Regulation. Since, at the time the access request was lodged, the ECB had not been implied in the supervisory procedure (yet), the documents held by the ECB could not be considered as included in the administrative file.
However, given the ongoing national enquiry, the Bank needed to access the information held by the ECB. In accordance with the Regulation, national authorities are competent to investigate on entities of less significant importance established in their jurisdiction. This, in turn, may culminate in the proposal of a draft decision of withdrawal, which, under the Regulation, the ECB itself should approve and notify to its addressee, prior to confirming and adopting it, thereby holding the ultimate say in decision-making heavily relying on the Maltese Authority.
Despite the ECB’s power to adopt the final decision, the fact the Maltese Authority was solely competent for the investigation prevented the Bank from accessing the information held by the ECB, in conformity with Article 22 of the Regulation, until they notified the draft decision of withdrawal.
The findings of the General Court
The General Court acknowledged that the right to access an administrative file and the documents of the institutions (Article 15 of TFUE), though distinct from a legal standpoint, are functionally and structurally comparable. Both legal bases actually ensure the right to access a file to obtain all documents submitted to institutions by the parties concerned and third parties.
The General Court noticed that the ECB Access Decision, enacting the general principle of access to documents expressed in Article 15 of TFEU, gives all EU citizens, or enterprises having a registered office in a EU Member State, a right of access to ECB documents without having neither to justify such request nor to demonstrate any specific interest thereto.
In light of this, the court acknowledged that the sole fact that the Bank could not access the information contained in the administrative file would not prevent them from accessing the documents held by the ECB on grounds of general access to documents. As the ECB did not examine the access request under the ECB Access Decision, the court upheld the Bank’s plea and annulled the ECB’s decision.
The way forward
Notwithstanding the rules in place in the EU transnational administrative space, the risk still persists that protection of rights could be impaired. By restating the primary substantive right of access to documents, based on Article 15 of TFEU and Article 42 of CFR, the General Court showed that EU law offers all the instruments required to protect the rights of individuals before EU institutions, which otherwise would not be granted.