Judgments nº T-3/00 of Court of First Instance of the European Communities, November 27, 2007

• Resolution Date: November 27, 2007
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-3/00

In Joined Cases T-3/00 and T-337/04,

Athanasios Pitsiorlas, residing in Thessaloniki (Greece), represented by D.†Papafilippou, lawyer,

applicant,

v

Council of the European Union, represented initially by M.†Bauer, S.†Kyriakopoulou and D.†Zachariou, and subsequently by M. Bauer and D. † Zachariou, acting as Agents,

and

European Central Bank (ECB), represented, in Case T-3/00, initially by C.†Zilioli, C.†Kroppenstedt and P.†Vospernik, and subsequently by C. Zilioli, C. Kroppenstedt, F.†Athanasiou and S.†Vuorensola, and finally by C. Zilioli, C. Kroppenstedt and F. Athanasiou†and, in Case T-337/04, by C. Kroppenstedt, F. Athanasiou and P.†Papapaschalis, acting as Agents,

defendants,

APPLICATION, first, for the annulment of the decisions of the Council and the European Central Bank refusing the applicant access to documents relating to the Basle/Nyborg Agreement of September 1987 and, second, for damages,

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fifth Chamber),

composed of M.†Vilaras, President, M.†E.†Martins†Ribeiro and K.†J¸rim‰e, Judges,

Registrar: C.†Kantza, Administrator,

having regard to the written procedure and further to the hearing on 29 March 2007,

gives the following

Judgment

†Relevant legal provisions

1 ††††††††Articles 104 and 105 of the EEC Treaty were initially drafted as follows:

-Article 104

Each Member State shall pursue the economic policy needed to ensure the equilibrium of its overall balance of payments and to maintain confidence in its currency, while taking care to ensure a high level of employment and a stable level of prices.

Article 105

1. ††††††In order to facilitate attainment of the objectives set out in Article 104, Member States shall coordinate their economic policies. They shall for this purpose provide for cooperation between their appropriate administrative departments and between their central banks.

   -

2. ††††††In order to promote coordination of the policies of Member States in the monetary field to the full extent needed for the functioning of the common market, a Monetary Committee with advisory status is hereby set up. It shall have the following tasks:

   -††††††††to keep under review the monetary and financial situation of the Member States and of the Community and the general payments system of the Member States and to report regularly thereon to the Council and to the Commission;

   -††††††††to deliver opinions at the request of the Council or of the Commission or on its own initiative, for submission to these institutions.

   The Member States and the Commission shall each appoint two members of the Monetary Committee.-

   2 ††††††††Having regard to Article 105(2) cited above and Article 153 of the EEC Treaty (which became Article 153 of the EC Treaty, now Article 209 EC), pursuant to which the Council was to determine the rules governing the committees provided for in the EEC Treaty, the Council adopted by decision of 18 March 1958 the Rules governing the Monetary Committee (OJ, English Special Edition: Series I Chapter 1952-1958, p. 60).

   3 ††††††††On 8 May 1964 the Council adopted Decision 64/300/EEC on cooperation between the Central Banks of the Member States of the European Economic Community (OJ, English Special Edition: Series I Chapter 1963-1964, p. 141). Under Article 1 of the decision, for the purpose of promoting co-operation between the Central Banks of the Member States, a Committee of the Governors of the Central Banks of the Member States of the European Economic Community (-the Committee of Governors-) was set up. Article 2 of the decision states, inter alia, that the Committee of Governors is to be composed of the Governors of the Central Banks of the Member States and that the Commission is, as a general rule, to be invited to send one of its members as a representative to the meetings of the Committee of Governors. Finally, under Article 3 of the decision, the tasks of the Committee of Governors are, inter alia, -to hold consultations concerning the general principles and the broad lines of policy of the Central Banks, in particular as regards credit and the money and foreign exchange markets- and -to exchange information at regular intervals about the most important measures that fall within the competence of the Central Banks, and to examine those measures-.

   4 ††††††††On 3 April 1973 the Council adopted Regulation (EEC) No 907/73 establishing a European Monetary Cooperation Fund (OJ 1973 L 89, p. 2). Under Article 2 of the regulation, the European Monetary Cooperation Fund (EMCF) is to promote, within the limits of its powers, -the proper functioning of the progressive narrowing of the margins of fluctuation of the Community currencies against each other-, -interventions in Community currencies on the exchange markets- and -settlements between Central Banks leading to a concerted policy on reserves-.

   5 ††††††††The first paragraph of Article 1 of the Statute of the EMCF, which is annexed to Regulation No 907/73, states that the EMCF is to be directed and managed by a Board of Governors and that the members of the Board of Governors are to be the members of the Committee of Governors.

   6 ††††††††In June 1988 the Council confirmed the objective of establishing, in stages, the Economic and Monetary Union (EMU).

   7 ††††††††The tasks of the Committee of Governors were extended by Council Decision 90/142/EEC of 12 March 1990 amending Decision 64/300 (OJ 1990 L 78, p. 25). Under that decision, the Committee may express opinions to individual governments and the Council of Ministers -on policies which might affect the internal and external monetary situation in the Community and, in particular, the functioning of the European Monetary System-.

   8 ††††††††The first stage in the establishment of the EMU officially began on 1 July 1990.

   9 ††††††††It is apparent from Article 109e of the EC Treaty (now, after, amendment, Article 116 EC) that the second phase of the establishment of the EMU began on 1 January 1994.

   10 ††††††Under the first subparagraph of Article 109f(1) of the EC Treaty (now, after amendment, Article 117 EC), -[a]t the start of the second stage, a European Monetary Institute (hereinafter referred to as -EMI- shall be established and take up its duties-. The fourth subparagraph of that provision, which has now been repealed, stated that -[t]he Committee of Governors shall be dissolved at the start of the second stage-.

   11 ††††††Article 1.3 of the Protocol on the statute of the European Monetary Institute (EMI), annexed to the EU Treaty, provides that -[p]ursuant to Article 109f of [the EC] Treaty, both the Committee of Governors and the [EMCF] shall be dissolved- and that all assets and liabilities of the EMCF are to pass automatically to the EMI. Pursuant to the first indent of Article 4.1 of the protocol, the EMI is to -strengthen cooperation between the national central banks- and the fifth indent of that provision states that the EMI is to -take over the tasks of the EMCF-.

   12 ††††††Under Article 123(1) EC, -[a]s soon as the Executive Board is appointed, the [European System of Central Banks] and the [European Central Bank] shall be established- and -the full exercise of their powers shall start from the first day of the third stage-.

   13 ††††††On 26 May 1998, the heads of State or of government of the Member States adopting the single currency took, by common accord, Decision 98/345/EC appointing the President, the Vice-President and the other members of the Executive Board of the European Central Bank (OJ 1998 L 154, p. 33). Pursuant to Article 123(1) EC, the effect of that decision was to set 1 June 1998 as the date for establishment of the European System of Central Banks (ESCB) and the European Central Bank (ECB).

   14 ††††††It is thus in those circumstances that the ECB replaced the EMI on 1 June 1998 with a view to the entry into the third stage of the EMU, which began on 1 January 1999.

   15 ††††††Article 114(2) EC states that -[a]t the start of the third stage an Economic and Financial Committee shall be set up- and that -the Monetary Committee - shall be dissolved-.

   16 ††††††In accordance with Article 8 EC, the ESCB and the ECB act within the limits of the powers conferred upon them by the EC Treaty and the Statute of the ESCB and of the ECB (-the ESCB Statute-) annexed thereto.

   17 ††††††It is apparent from Article 105 EC that the basic tasks to be carried out through the ESCB are the definition and implementation of the monetary policy of the Community, the conduct of foreign exchange operations, the holding and managing of the official foreign reserves of the Member States and the promotion of the smooth operation of payment systems, the primary objective being to maintain price stability. The ECB is to make regulations and take the decisions necessary for carrying out the tasks of the ESCB (Article 110 EC).

   18 ††††††Paragraphs 1 and 3 of Article 107 EC state, respectively, that the ESCB -shall be composed of the ECB and of the national central banks- and that it -shall be governed by the decision-making bodies of the ECB which shall be the Governing Council and the Executive Board-.

   19 ††††††Article 112 EC states:

   -1. ††††††The Governing Council of the ECB shall comprise the members of the Executive Board of the ECB and the Governors of the national central banks.

2. ††††††(a) The Executive Board shall comprise the President, the Vice-President and four other members.

   --

   20 ††††††Article 10.4 of the ESCB Statute provides that the meetings of the Governing Council are to be confidential and that that council may decide to make the outcome of its deliberations public.

   21 ††††††Under Article 12.3 of the ESCB Statute, -[t]he Governing Council shall adopt Rules of Procedure which determine the internal organisation of the ECB and its decision-making bodies-. The ECB adopted its Rules of Procedure on 7 July 1998 (OJ 1998 L 338, p. 28), which were amended on 22 April 1999 (OJ 1999 L 125, p. 34) and on 7 October 1999 (OJ...