Satabank plc v European Central Bank.

• Jurisdiction: European Union
• ECLI: ECLI:EU:T:2023:149
• Date: 22 March 2023
• Docket Number: T-72/20
• Celex Number: 62020TJ0072
• Court: General Court (European Union)

JUDGMENT OF THE GENERAL COURT (First Chamber, Extended Composition)

22 March 2023 ( *1 )

(Economic and monetary policy – Prudential supervision of credit institutions – Regulation (EU) No 1024/2013 – Regulation (EU) No 468/2014 – Supervised entity – Composite administrative procedure – Denial of access to the file – Directive 2004/258/EC – Access to ECB documents)

In Case T‑72/20,

Satabank plc, established in St Julian’s (Malta), represented by O. Behrends, lawyer,

applicant,

v

European Central Bank (ECB), represented by G. Buono, A. Lefterov and E. Koupepidou, acting as Agents,

defendant,

THE GENERAL COURT (First Chamber, Extended Composition),

composed, at the time of the deliberations, of H. Kanninen, President, M. Jaeger, N. Półtorak (Rapporteur), O. Porchia and M. Stancu, Judges,

Registrar: P. Cullen, Administrator,

having regard to the written part of the procedure, in particular the order of 9 March 2021 reserving the plea of inadmissibility until the Court rules on the substance of the case,

further to the hearing on 7 June 2022,

gives the following

Judgment

1 By its action pursuant to Article 263 TFUE, the applicant, Satabank plc, seeks annulment of the decision of the European Central Bank (ECB) of 26 November 2019 by which it rejected its request for access to the file concerning it (‘the contested decision’).

Background to the dispute and events subsequent to the bringing of the action

2 At the time the present action was brought, the applicant was a credit institution under Maltese law, which had been classified as a less significant institution for the purposes of Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions (OJ 2013 L 287, p. 63; ‘the SSM Regulation’), and was directly supervised by the Malta Financial Services Authority (MFSA).

3 On 16 November 2019, the applicant’s lawyer, instructed by the applicant’s shareholders on the ground that the applicant no longer had a board of directors, requested access to the file concerning it from the ECB (‘the request for access’).

4 By the contested decision, the ECB refused the request for access, stating that the applicant was not the subject of proceedings within the meaning of Article 22 of the SSM Regulation and that, as a consequence, no access to any file could be granted to it pursuant to Article 32(1) of Regulation (EU) No 468/2014 of the European Central Bank of 16 April 2014 establishing the framework for cooperation within the Single Supervisory Mechanism between the European Central Bank and national competent authorities and with national designated authorities (OJ 2014 L 141, p. 1; ‘the SSM Framework Regulation’).

5 On 12 February 2020, pursuant to Article 14(5) of the SSM Regulation and Article 80 of the SSM Framework Regulation, the MFSA submitted to the ECB a draft decision proposing the withdrawal of the applicant’s authorisation and, on 17 February 2020, it submitted a revised draft to the ECB.

6 On 16 March 2020, the ECB notified the applicant’s lawyer and the competent person, designated by the MFSA to advise and supervise the applicant in the proper conduct of its activities, of a draft decision withdrawing its authorisation and gave them the opportunity to comment in writing on that draft.

7 On 24 March 2020, the applicant’s lawyer requested access to the file.

8 The ECB granted access to the file on 30 April, 4 May and 3 June 2020.

9 On 30 June 2020, the ECB adopted a decision withdrawing the applicant’s authorisation as a credit institution (‘the withdrawal decision’), the receipt of which was acknowledged by the applicant on 1 July 2020. The applicant’s lawyer sought annulment of the withdrawal decision by action brought on 9 September 2020 and registered as Case T‑563/20. By document lodged at the Court Registry on 18 February 2020, the applicant informed the Court in accordance with Article 125 of the Rules of Procedure of the General Court that it was discontinuing those proceedings. By order of 8 April 2022, Satabank v ECB (T‑563/20, not published, EU:T:2022:240), that case was removed from the Court’s register.

Forms of order sought

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

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

Law

Admissibility of the action and the applicant’s interest in bringing proceedings

12 First, the ECB raised, by a separate document, a plea of inadmissibility in respect of the present action.

13 In the first place, the ECB considers that the contested decision does not affect the applicant’s legal position. The ECB states in that regard that in the case of acts or decisions adopted by a procedure involving several stages, in particular where they are the culmination of an internal procedure, it is in principle only those measures which definitively determine the position of the institution upon the conclusion of that procedure which are open to challenge and not intermediate measures whose purpose is to prepare the final decision. Therefore, the ECB’s response to a request for access to a supervisory file does not have an independent impact on the legal position of the persons concerned.

14 In the second place, the ECB claims that the applicant has not shown that it has an interest in bringing proceedings in the present action. As regards the withdrawal procedure initiated by the ECB, the applicant was given the opportunity to submit its comments on the ECB’s draft decision. In those circumstances, any interest in bringing an action for annulment arising from the claims set out in the application would be hypothetical and, in any event, devoid of any connection with the applicant’s rights of defence. Consequently, the ECB suggests that the present action will procure no advantage to the applicant.

15 The applicant disputes that line of argument.

16 As regards the ECB’s first argument, that the contested decision is a preparatory act which does not affect the applicant’s legal position, it must be recalled at the outset that measures the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in its legal position are acts which may be the subject of an action for annulment under Article 263 TFEU (see judgment of 26 January 2010, Internationaler Hilfsfonds eV v Commission, C‑362/08 P, ECLI:EU:C:2010:40, paragraph 51 and the case-law cited).

17 When an act is adopted by a procedure involving several stages, and particularly where it is the culmination of an internal procedure, it is, in principle, only a measure which definitively determines the position of the institution upon the conclusion of that procedure that is open to challenge, and not intermediate measures the purpose of which are to prepare the final decision. Acts preparatory to a decision do not adversely affect a person and an applicant may rely on defects in acts prior to the decision and closely linked to it only in the context of an action challenging the decision adopted at the end of the procedure (see order of 31 March 2020, ZU v EEAS, T‑499/19, not published, EU:T:2020:134, paragraph 33 and the case-law cited).

18 In that regard, it should be borne in mind, as is apparent from the contested decision, that the ECB noted that it was not involved in any specific supervisory procedure relating to the applicant at the time when the request for access was made.

19 The ECB cannot claim, first, that it refuses access to the applicant’s file because there are no pending proceedings and, second, that such a refusal, as a preparatory act, can be challenged only in the context of an action against a decision closing those non-existent proceedings. Since the ECB took the view in the contested decision that there were no proceedings against the applicant, that decision could not be followed by any subsequent act putting an end to a supervisory procedure against which the applicant could have acted, thereby challenging that decision.

20 Thus, the contested decision must be regarded as definitively determining the ECB’s position.

21 As regards the ECB’s second argument, that the applicant’s interest in bringing proceedings is hypothetical and without connection to its rights of defence, it must be borne in mind at the outset that an action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in having the contested act annulled. Such an interest requires that the annulment of that act must be capable, in itself, of having legal consequences and that the action may therefore, through its outcome, procure an advantage to the party which brought it (see judgment of 20 December 2017, Binca Seafoods v Commission, C‑268/16 P, EU:C:2017:1001, paragraph 44). It should also be borne in mind that the assessment of the admissibility of the action in the light of the interest in bringing proceedings is assessed at the time when the action is brought (see, to that effect, judgment of 16 December 1963, Forges de Clabecq v High Authority, 14/63, EU:C:1963:60, paragraph 719, and order of 30 November 1998, N v Commission, T‑97/94, EU:T:1998:270, paragraph 23).

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