1 See art. 1 TEU. On the EU’s understanding of the rule of law and its origins in economic integration, see P Van Cleynenbreugel, ‘Member States in the EU Economic Constitution: Rule of Law Challenges and Opportunities’ (2019) LIEI 329, 330 ff.
2 See for a review of accountability issues and their application in the context of the European Central Bank, D Curtin, ”Accountable Independence” of the European Central Bank: Seeing the Logics of Transparency’ (2017) ELJ 28. See more generally within the framework of the Economic and Monetary Union, M Markakis, Accountability in the Economic and Monetary Union: Foundations, Policy, and Governance (Oxford University Press 2020) 52-54 on transparency problems as accountability issues.
3 See again art. 1 TEU, which states that within the EU, decisions are taken as openly as possible and as closely as possible to the citizen.
4 See art. 13(1) TEU.
5 Art. 15(3) TFEU, fourth indent extends the same exception to the Court of Justice and the European Investment Bank. The Court has made it clear that it will only grant access to documents that are not linked to its judicial function: see Decision 2020/C 45/02 of the Court of Justice of the European Union of 26 November 2019 concerning public access to documents held by the Court of Justice of the European Union in the exercise of its administrative functions; see also case T-433/17 Dehousse v Court of Justice of the European Union ECLI:EU:T:2019:632 para. 34, where the General Court stated that transparency is to be the rule and confidentiality the exception.
6 See also P Van Cleynenbreugel, ‘Confidentiality behind Transparent Doors: the European Central Bank and the EU Law Principle of Openness’ (2018) Maastricht Journal of European and Comparative Law 52.
7 Art. 127(1) TFEU.
8 Art. 127(3) TFEU.
9 Emphasis added. See for an example Decision 150/2001/EC of the European Central Bank of 10 November 2000 on the publication of certain legal acts and instruments of the ECB.
10 See for background on the nature of ECB monetary policy, K Tuori, ‘The ECB’s Quantitative Easing Programme as a Constitutional Game Changer’ (2019) Maastricht Journal of European and Comparative Law 94.
11 Decision 257/2004/EC of the European Central Bank of 19 February 2004 adopting the Rules of Procedure of the European Central Bank, art. 23(3). See also Decision 2/2004/ECB of the European Central Bank of 17 June 2004 adopting the Rules of Procedure of the General Council of the European Central Bank, art. 10(3).
12 Decision 258/2004/EC of the European Central Bank of 4 March 2004 on public access to European Central Bank documents.
13 On the emergence of the Banking Union and the ECB’s role in that regard, see among others N Moloney, ‘European Banking Union: Assessing its Risks and Resilience’ (2014) CMLRev 1609 and BS Nielsen, ‘Main Features of the European Banking Union’ (2015) European Business Law Review 805.
14 On the Single Supervisory Mechanism in particular, see among others B Wolfers and T Voland, ‘Level the Playing Field: The New Supervision of Credit Institutions by the European Central Bank’ (2014) CMLRev 1463.
15 Regulation (EU) 1024/2013 of the Council of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions, art. 4.
16 On macro-prudential supervision powers, which are entrusted to the European Systemic Risk Board, the secretariat of which is assured by the ECB, see Regulation 1092/2010 of the European Parliament and of the Council of 24 November 2010 on European Union macro-prudential oversight of the financial system and establishing a European Systemic Risk Board, and C Papathanassiou and G Zagouras, ‘A European Framework for Macro-Prudential Oversight’ in E Wymeersch, KJ Hopt and G Ferrarini (eds), Financial Regulation and Supervision: A Post-Crisis Analysis (Oxford University Press 2012) 159.
17 That has also been a position defended by Advocate General Bot, in case C-15/16 Baumeister ECLI:EU:C:2017:958, opinion of AG Bot, para. 41.
18 Regulation (EC) 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents.
19 See on that point, P Leino-Sandberg, ‘Public Access to ECB Documents: Are Accountability, Independence and Effectiveness an Impossible Trinity?’ in European Central Bank (ed) Building Bridges: Central Banking Law in an Interconnected World, Proceedings of the ECB legal Conference 2019, 24 June 2020 www.ecb.europa.eu 206.
20 Case T-251/15 Espírito Santo Financial (Portugal) v ECB ECLI:EU:T:2018:234 para. 5.
21 Ibid. paras 12 and 15.
22 Ibid. para. 52.
23 Ibid. paras 81 and 125.
24 See also case T-730/16 Espírito Santo Financial Group SA v ECB ECLI:EU:T:2019:161, which resulted in a similar conclusion.
25 Case C-442/18 P ECB v Espírito Santo Financial (Portugal) ECLI:EU:C:2019:1117 para. 42. The Court reached the same conclusion in case C-396/19 P ECB v Estate of Espírito Santo Financial Group ECLI:EU:C:2020:845.
26 ECB v Espírito Santo Financial (Portugal), cit. para. 44.
27 Ibid. para. 56.
28 See for background, F Amtenbrink, ‘The European Central Bank’s Intricate Independence versus Accountability Conundrum in the Post-Crisis Governance Framework’ (2019) Maastricht Journal of European and Comparative Law 165.
29 See D Fromage, ‘Guaranteeing the ECB Democratic Accountability in the Post-Banking Union Era: An Ever More Difficult Task?’ (2019) Maastricht Journal of European and Comparative Law 48.
30 See P Van Cleynenbreugel, ‘Confidentiality behind Transparent Doors: the European Central Bank and the EU Law Principle of Openness’ cit. 59 ff. On the difficulties of communicating within the context of banking supervision, see M Bozina Beros, ‘The ECB’s Accountability within the SSM Framework: Mind the (Transparency) Gap?’ (2019) Maastricht Journal of European and Comparative Law 122. For a proposal to allow experts audit confidential decisions, see P Nicolaïdes, ‘Accountability of the ECB’s Supervisory Activities: Evolving and Responsive’ (2019) Maastricht Journal of European and Comparative Law 136.
31 See on that point, P Leino-Sandberg, ‘Public Access to ECB Documents: Are Accountability, Independence and Effectiveness an Impossible Trinity?’ cit. 215.
32 We specifically focus on domains of banking and monetary law covered by EU law. The European Stability Mechanism, established by international Treaty and operating in accordance with public international law, is not covered by our analysis. See Treaty establishing the ESM [2012]. The ESM does not have a transparency/access to documents regime in place, although calls have been made to pay attention to this, see M Markakis, Accountability in the Economic and Monetary Union: Foundations, Policy, and Governance cit. 147.
33 This was confirmed in the context of an action for annulment on the basis of art. 263 TFEU in joined cases C-105/15 P to C-109/15 P Mallis and Malli v Commission and ECB ECLI:EU:C:2016:702 paras 47-49. Advocate General Pitruzzella confirmed that position in his opinion in a case on EU liability for damages caused by Eurogroup actions, see joined cases C-597/18 P, C-598/18 P, C-603/18 P and C-604/18 P Council v K. Chrysostomides & Co. and Others ECLI:EU:C:2020:390, opinion of AG Pitruzzella, paras 62-107.
34 See art. 4 Regulation 1024/2013 cit. See also for background G Bassani, The Legal Framework applicable to the Single Supervisory Mechanism: Tapestry or Patchwork? (Kluwer Law International 2019).
35 See Regulation (EU) 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), amending Decision 716/2009/EC and repealing Commission Decision 2009/78/EC.
36 See, by way of example, art. 6 of Regulation 1024/2013 cit.
37 At least according to case C-617/10 Åkerberg Fransson ECLI:EU:C:2013:105 para. 28.
38 As confirmed in case C-594/16 Buccioni ECLI:EU:C:2018:717 para. 20.
39 As done by the Court in ECB v Espírito Santo Financial (Portugal) cit. para. 56.
40 For an overview, see case C-594/16 Buccioni ECLI:EU:C:2018:425, opinion of AG Bobek, para. 43; see also R Smits and N Badenhoop, ‘Towards a Single Standard of Professional Secrecy for Supervisory Authorities: A Reform Proposal’ (2019) ELR 295.
41 By way of example, see Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU, art. 76(1).
42 Baumeister, opinion of AG Bot, cit. para. 41.
43 Baumeister cit. para. 35.
44 Ibid. para. 43.
45 Ibid. para. 44.
46 Case C-358/16 UBS Europe and Others ECLI:EU:C:2018:715.
47 Buccioni cit. para. 30.
48 Buccioni, opinion of AG Bobek, cit. para. 32.
49 Although, given the ECB’s particular role in relying on prudential supervision insights to develop effective monetary policies, it could also be argued that internal coherence vis-à-vis the accessibility of documents would be more important than coherence between national authorities and the ECB in access to prudential supervision documents. The Court has not had the opportunity to address that point in the case law referred to here.
50 Recital 10 of Regulation (EU) 806/2014 of the European Parliament and of the Council of 15 July 2014 establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation (EU) 1093/2010.
51 Art. 67 of the Regulation 806/2014 cit.
52 Art. 42 of the Regulation 806/2014 cit. On the SRB’s extensive powers, see IG Asimakopoulos, ‘The Single Resolution Board as a New form of Economic Governance’ in H Hofmann, K Pantazatou and G Zaccaroni (eds), The Metamorphosis of the European Economic Constitution (Edward Elgar 2019) 279.
53 Art. of the 88 Regulation 806/2014 cit.
54 Decision (SRB/ES/2017/1) of the executive session of the Board of 9 February 2017 on public access to the Single Resolution Board documents (hereinafter SRB access to documents Decision).
55 Recitals 1 and 2 of the SRB access to documents Decision cit.
56 Art. 4(1) of the SRB access to documents Decision cit.
57 Art. 90(4) of the Regulation 806/2014 cit.
58 Art. 90(3) of the Regulation 806/2014 cit.
59 For an overview, see the decisions of the SRB regarding Banco Popular at srb.europa.eu.
60 See, by way of example, Single Resolution Board Appeal Panel, final decision of 19 June 2018, case 54/17 para. 20.
61 See, to that extent, pending case T-62/18 Aeris Invest v CRU, pending case – action brought on 6 February 2018, first plea in law.
62 Mallis and Malli v Commission and ECB cit. paras 47-49.
63 See, to that extent, the site of the Eurogroup at the website of the Council of the European Union, www.consilium.europa.eu.
64 This is based upon recital 11 of Regulation 1049/2001 cit.
65 An update in B Braun and M Hübner, Vanishing Act: The Eurogroup’s Accountability (Transparency International EU 2019) transparency.eu.
66 Remarks by Eurogroup President following the meeting of 11 February 2016 www.consilium.europa.eu.
67 Remarks by Eurogroup President following the meeting of 7 March 2016 www.consilium.europa.eu.
68 Reply from the Eurogroup President to the European Ombudsman of 16 May 2016 on recent initiatives to improve Eurogroup transparency www.ombudsman.europa.eu.
69 Ibid.
70 Remarks by Eurogroup President following the meeting of 7 September 2018 www.consilium.europa.eu.
71 See Eurogroup transparency policy review and way forward of 20 September 2019 www.consilium.europa.eu 3.
72 German Constitutional Court judgment 2 BvR 859/15. On the judgment, see D Kyriazis, ‘The PSPP judgment of the German Constitutional Court: An Abrupt Pause to an Intricate Judicial Tango’ (6 May 2020) European Law Blog europeanlawblog.eu and A Viterbo, ‘The PSPP Judgment of the German Federal Constitutional Court: Throwing Sand in the Wheels of the European Central Bank’ European Papers (European Forum Insight of 26 June 2020) www.europeanpapers.eu 671.
73 ECB v Espírito Santo Financial (Portugal) cit. para. 42.
74 Draft recommendation of 20 January 1997 of the European Ombudsman on the own initiative inquiry into public access to documents, 616/PUBAC/F/IJH www.ombudsman.europa.eu.
75 ECB v Espírito Santo Financial (Portugal) cit.
76 Case C-493/17 Weiss and Others ECLI:EU:C:2018:1000.
77 See for that programme, Decision (EU) 2015/774 of the European Central Bank of 4 March 2015 on a secondary markets public sector asset purchase programme (ECB/2015/10). In the meantime, that Decision had been replaced by Decision (EU) 2020/188 of the European Central Bank of 3 February 2020 on a secondary markets public sector asset purchase programme (ECB/2020/9).
78 German Constitutional Court judgment 2 BvR 859/15 cit. paras 176-177.
79 Ibid. para. 178.
80 Ibid. para. 216.
81 Ibid. para. 235.
82 M Lamandini and D Ramos Muñoz, ‘Monetary policy judicial review by ‘hysteron proteron’? In praise of a judicial methodology grounded on facts and on a sober and neutral appraisal of (ex ante) macro-economic assessments’ (20 May 2020) EU Law Live eulawlive.com.
83 See also E Cerrato, F Agostini and N Jaberg, ‘Why the PSPP judgment of the German Federal Constitutional Court Gives the ECB Another Incentive to Integrate Climate Change Considerations into Monetary Policy’ (27 May 2020) European Law Blog europeanlawblog.eu.
84 See for the definition of a regulatory sandbox the UK’s Financial Conduct Authority’s brochure on regulatory sandboxes: Financial Conduct Authority, ‘Regulatory Sandbox’ (November 2015) www.fca.org.uk 1.
85 See for coverage of those developments A Rinke, ‘ECB stimulus plans meets court requirements: German Finance Minister’ (29 June 2020) Reuters www.reuters.com.
