ECLI:EU:C:2026:506

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OPINION OF ADVOCATE GENERAL

CAMPOS SÁNCHEZ-BORDONA

delivered on 18 June 2026 (1)

Case C‑550/25 P

ABLV Bank AS, in liquidation,

European Central Bank (ECB)

( Appeal – Access to documents – Rules on access to ECB documents – Decision 2004/258/EC – Right of access to an ECB file – Rules applicable to the applicant’s request – Refusal of access – Action for annulment )

1. This appeal concerns the rules on public access to European Central Bank (ECB) documents, laid down in Decision 2004/258/EC. (2)

2. By a decision of 8 December 2022, (3) the ECB rejected the application made by ABLV Bank AS (‘ABLV’) for access to certain documents.

3. In the judgment of 4 June 2025, ABLV Bank v ECB, (4) the General Court dismissed the action brought by ABLV against the decision at issue. On appeal, ABLV alleges that the General Court committed a number of errors of law and therefore claims that the judgment under appeal should be set aside and the decision at issue should be annulled.

I. Background to the dispute

4. The background to the dispute is set out in paragraphs 2 to 15 of the judgment under appeal and may be summarised as follows:

– ABLV was a credit institution established in Latvia.

– On 13 February 2018, the United States Department of the Treasury (United States), through the Financial Crimes Enforcement Network (United States; ‘FinCEN’), announced its intention to adopt a measure to designate ABLV as an institution of primary money laundering concern. Following that announcement, ABLV experienced a wave of deposit withdrawals.

– On 23 February 2018, the ECB concluded that ABLV was failing or likely to fail within the meaning of Article 18(1) of Regulation (EU) No 806/2014. (5) On the same day, the Single Resolution Board (SRB) decided not to adopt a resolution action in respect of ABLV.

– On 11 July 2018, the ECB withdrew ABLV’s licence.

– On 26 March 2021, the Korupcijas novēršanas un apkarošanas birojs (Corruption Prevention and Combating Bureau, Latvia; ‘the KNAB’) decided to terminate the criminal proceedings commenced following the proposed FinCEN measure.

– On 25 May 2022, ABLV applied to the ECB for access to:

– any document relating, directly or indirectly, to FinCEN and/or other parts of, or officials from other parts of, the United States Treasury Department or other United States authorities or authorities in the United States and/or the applicant and/or its Luxembourg subsidiary;

– any document containing communications, directly or indirectly, with FinCEN and/or FinCEN officials and/or other parts of, or officials from other parts of, the United States Treasury Department or other United States authorities or authorities in the United States;

– any document relating, directly or indirectly, to the KNAB decision, the facts referenced by the KNAB decision and/or the factual findings in the KNAB decision, irrespective of whether such communications occurred before or after the FinCEN announcement;

– any document relating, directly or indirectly, to acts or omissions of the ECB, the SRB, the Finanšu un kapitāla tirgus komisija (Financial and Capital Markets Commission, Latvia; ‘the FCMC’), FinCEN or any other authority following the FinCEN announcement or prior to the FinCEN announcement;

– any document relating, directly or indirectly, to Euroclear regarding its role in relation to ABLV and/or its Luxembourg subsidiary, including, without limitation, any communication between the ECB and/or the SRB and Euroclear relating directly or indirectly to ABLV and/or its Luxembourg subsidiary;

– any other document relating, directly or indirectly, to ABLV and/or its Luxembourg subsidiary.

5. On 8 August 2022, the ECB informed ABLV that the application for access would be processed in two batches. As regards the second batch (which covers the documents referred to in the final three indents set out in the previous point), the ECB stated that the application for access was not sufficiently precise within the meaning of Article 6(1) of Decision 2004/258. Therefore, the ECB asked ABLV, in accordance with Article 6(2) of Decision 2004/258, to indicate the specific subject matter or topics of interest to it and a limited time frame. The ECB informed ABLV that the processing of the second batch was put on hold until the scope of the application for access was specified.

6. On 13 September 2022, the ECB communicated to ABLV its initial decision, (6) indicating that the final three indents of the application for access were not sufficiently precise, and asked ABLV to give details of the specific subject matter or topics of interest to it and a limited time frame. In the same communication, the ECB stated, inter alia, that, after examining the first three indents of the application for access, it had identified nine documents of relevance under the first two indents. By contrast, no ECB document corresponding to the third indent could be identified. According to the ECB, two of the relevant documents were publicly available and full or partial access to the seven other documents had to be refused. (7)

7. On 11 October 2022, ABLV made a confirmatory application to the ECB, in accordance with Article 7(2) of Decision 2004/258. In particular, it requested that the ECB reconsider its position and complete the list of documents relating to the application for access. In addition, ABLV requested, pursuant to Article 41(2)(b) of the Charter of Fundamental Rights of the European Union (‘the Charter’), access to the file relating to the ongoing procedure in the context of its application for access to documents.

8. On 8 December 2022, the ECB adopted the decision at issue.

II. The proceedings before the General Court and the judgment under appeal

9. On 20 February 2023, ABLV brought an action before the General Court for annulment of the decision at issue.

10. In support of its application, ABLV relied on five pleas in law alleging that:

– the list of documents identified by the ECB is incorrect;

– with regard to Documents No 1 and No 2, the reference to the FinCEN website is incorrect;

– the refusal to grant access to Documents No 3 to No 9 was unlawful;

– the refusal to grant access to the file was unlawful;

– the suspension of the procedure for access to documents with respect to the second batch was unlawful.

11. The General Court dismissed the action in its entirety.

III. The appeal and the proceedings before the Court of Justice

12. ABLV’s appeal, which was received at the Registry of the Court of Justice on 14 August 2025, is based on 12 grounds.

13. ABLV requests that:

– the judgment under appeal be set aside;

– the decision at issue be annulled;

– the ECB be ordered to pay the costs;

– the case be referred back to the General Court for a ruling on the substance.

14. The ECB requests that the appeal be dismissed and that ABLV be ordered to pay the costs.

15. As directed by the Court, this Opinion will be confined to the third, seventh, eighth and ninth grounds of appeal.

IV. Assessment

16. The ECB contends that the appeal is inadmissible in its entirety, repeating that plea in its examination of each specific ground of appeal. In its submission, ABLV merely criticises the assessment of the facts conducted by the General Court.

17. As regards the grounds examined in this Opinion, it is my view that the appellant essentially disputes the interpretation of legality carried out by the General Court when identifying the legislation applicable to the case, on the one hand, and when defining the scope of the exercise of its own jurisdiction, on the other.

18. In so far as ABLV challenges the interpretation or application of EU law effected by the General Court, the points of law examined at first instance may be discussed again on appeal.

A. The third ground of appeal

1. Arguments of the parties

19. ABLV complains of an alleged error of law and insufficient reasoning in the part of the judgment under appeal which found that the final three indents of the application for access to documents were not sufficiently precise within the meaning of Article 6(1) of Decision 2004/258.

20. ABLV argues that the General Court did not perform any legal test for assessing the lack of precision of the final three indents of the application for access. The judgment under appeal did not even state that the scope of those indents prevented the ECB from identifying the documents with which those parts of the application for access were concerned.

21. The ECB contends that the ground of appeal is inadmissible since the General Court expressly reasoned that, in view of the wording of the final three indents of the application for access, the ECB was legitimately entitled to request clarification in relation to those categories of documents, while it is not for the Court of Justice to review that assessment on appeal. In any event, given that the ECB was unable to identify the documents of interest to the applicant, the ground must be dismissed.

2. Analysis

22. Article 6 of Decision 2004/258 provides that applications for access to ECB documents must be made ‘in a sufficiently precise manner to enable the ECB to identify the [documents]’ (paragraph 1). Otherwise, ‘the ECB shall ask the applicant to clarify the application and shall assist the applicant in doing so’ (paragraph 2).

23. Those two paragraphs of Article 6 of Decision 2004/258 reproduce almost verbatim the wording of Article 6(1) and (2) of Regulation (EC) No 1049/2001. (8) Unlike the exceptions to the right of access to documents, the requirement that applications for access must be ‘sufficiently precise’ applies in the same way under Regulation No 1049/2001 and Decision 2004/258.

24. With regard to access to ECB documents, the Court has held:

– ‘… the ECB, by Decision 2004/258, chose to confer a right of access to its documents subject to the conditions and limits defined by that decision. That decision thus aims to preserve that right of access while taking into account the specific nature of that institution which, in accordance with Article 130 TFEU, must be able effectively to pursue the objectives attributed to its tasks, through the independent exercise of the specific powers conferred on it for that purpose by the Treaty and the Statute of the ESCB.’ (9)

– ‘Moreover, it must be borne in mind that the legal framework concerning access to ECB documents provided for by the Treaties differs, under the fourth subparagraph of Article 15(3) TFEU, depending on whether or not the ECB is exercising its administrative tasks. While the rules on access to the documents of the institutions subject to that provision must be compliant with Regulation No 1049/2001, a document such as the document at issue … cannot be considered to be related to the exercise of the ECB’s administrative tasks.’ (10)

– ‘It follows that the second subparagraph of Article 4(3) of Regulation No 1049/2001 is designed so that access to a document is refused only where it is related to a specific decision, whereas, under the first subparagraph of Article 4(3) of Decision 2004/258, the protection of confidentiality of the ECB’s documents is guaranteed even when those documents are not part of the process of adopting a specific decision.’ (11)

25. In principle, the requirement of precision laid down in Decision 2004/258 does not require a different interpretation from that resulting from the arrangements for access to documents laid down in Regulation No 1049/2001, even though the latter do not apply to the ECB. (12)

26. In the Court’s case-law, there is, of course, no shortage of judgments ruling on applications for access to a large number of documents or to very long documents, (13) or on the definition of the term ‘document’. (14)

27. However, the same does not apply to the requirement that the application for access must be ‘sufficiently precise’. That requirement relates to the identification of the documents requested, in other words, to something which precedes the assessment of the length and number of those documents. (15)

28. ABLV asserts that, as regards the documents at issue, its ‘request is simple and precise’. (16) ABLV argues that the fact that the ECB concluded otherwise and, in particular, that the General Court takes the same view as the ECB can be explained only by: (i) the intent to delay which underlies the ECB’s approach to access to its documents (17) and (ii) the error in law committed by the General Court ‘by providing no analysis, submitting no reasoning, nor giving any conclusion that the final three indents of the Appellant’s request for access to documents did in fact prevent the ECB from being able to identify the documents requested’. (18)

29. In particular, the terms in which ABLV criticises the General Court are categorical. In that connection, ABLV asserts that ‘the General Court does not provide any reasons or legal argument as to how the alleged general wording of the request results in an imprecise request’. (19) Moreover, ABLV maintains that ‘the General Court … does not rely on any legal basis and does not attempt to perform any legal test … [when it finds] that the scope of the request prevents the institution from being able to identify the documents requested’. (20)

30. However, it is clear from reading paragraphs 170 to 182 of the judgment under appeal that those serious allegations are unfounded.

31. The General Court states that, ‘given that the ECB considered that the final three indents of the application for access did not satisfy the conditions laid down in Article 6(1) of Decision 2004/258, it must be examined, first, whether that part of the application for access was sufficiently precise within the meaning of Article 6(1) of that decision and, second, whether the ECB complied with its duty to provide assistance referred to in Article 6(2) of that decision’. (21)

32. The General Court then transcribes the wording of the final three indents of the application (22) and concludes that, ‘in view of the general wording of the final three indents of the application for access, the ECB was legitimately entitled to request clarification in relation to those categories of documents … [and that,] in the light of the wording [thereof] and, in particular, in the absence of a limited [time frame], it was not possible to ascertain whether that part of the application concerned documents relating to the FinCEN announcement or to other supervisory matters’. (23)

33. It is for the General Court to determine whether the wording of the application was indeed so broad that it did not comply with the requirement of precision laid down in Article 6(1) of Decision 2004/258. The General Court has sole jurisdiction to establish and assess the relevant facts and to assess the evidence. Unless such facts and evidence have been distorted, (24) which only occurs where, ‘in particular, the General Court has manifestly exceeded the limits of a reasonable assessment of the evidence’, (25) the Court of Justice must respect that assessment on appeal.

34. In my view, the General Court conducted a reasonable assessment of the application at issue.

35. As I observed above, (26) ABLV requested, inter alia:

– any document relating, directly or indirectly, to acts or omissions of the ECB, the SRB, the FCMC, FinCEN or any other authority following the FinCEN announcement or prior to the FinCEN announcement;

– any other document relating, directly or indirectly, to ABLV and/or its Luxembourg subsidiary.

36. I agree with the General Court that the general nature of that wording is not open to question:

– in all three instances, the application concerns ‘any document’ relating ‘directly or indirectly’ either to ‘acts or omissions’ of various institutions or of ‘any other authority’ or ‘to the applicant and/or its Luxembourg subsidiary’;

– the wording of the application includes ‘without limitation, any communication’ between the ECB and two entities relating directly or indirectly to ABLV and/or its Luxembourg subsidiary;

– the documents requested are identified as those produced (or not produced in the case of omissions) ‘following the FinCEN announcement or prior to the FinCEN announcement’.

37. The General Court’s finding regarding the lack of precision of an application worded in such general terms cannot, I repeat, be considered unreasonable. It may, of course, be disputed, as ABLV does, but only by requesting a fresh assessment of the facts, which does not fall within the scope of an appeal.

38. Moreover, the finding which ABLV now (wrongly) disputes on appeal could have been different if ABLV had responded to the request for clarification which the ECB sent to it in compliance with its duty to provide assistance.

39. In accordance with Article 6(2) of Decision 2004/258, the ECB asked ABLV on two occasions to indicate the specific subjects of interest to it and to confine its application to a limited time frame. (27)

40. ABLV ignored the request on the grounds that its application was sufficiently precise and that the ECB was merely attempting to delay and impede the procedure for access to documents.

41. Again, I agree with the General Court that ‘the applicant could not refrain from clarifying its application without running the risk of the ECB finding that that application did not satisfy the conditions laid down in Article 6(1) of Decision 2004/258’. (28) The General Court adds that ‘the lack of clarification on [ABLV’s] part is not the result of its inability to identify the documents which allegedly contain the information it is seeking, but rather is the result of its lack of willingness to clarify the application for access’. (29)

42. In short, ABLV persisted in its view that the application at issue was clear and precise, ignoring a request for clarification which, while it may have appeared questionable to ABLV, was by no means unreasonable or disproportionate, and in respect of which the intention to delay alleged by the appellant could not be relied on without further explanation.

43. In those circumstances, I believe that the third ground of appeal must be dismissed as unfounded.

B. The seventh and eighth grounds of appeal

44. The seventh and eighth grounds of appeal may be examined together. In the seventh ground, ABLV disputes the correctness of the General Court’s identification of the applicable legislation and the scope of its jurisdiction. In the eighth ground, ABLV criticises the consequences of that incorrect identification in relation to the refusal of access to three of the documents requested.

45. In the seventh ground of appeal, ABLV alleges that the General Court committed two errors of law:

– first, by holding that the ECB’s confidentiality obligations may be based on Article 27(1) of Regulation (EU) No 1024/2013 (30) and Article 53(1) of Directive 2013/36/EU; (31)

– secondly, by granting the ECB a ‘broad discretion’ in relation to the criteria laid down in the judgment of 19 June 2018, Baumeister. (32)

46. In the eighth ground of appeal, ABLV alleges that the General Court erred in law by incorrectly applying the criteria laid down in the judgment in Baumeister when assessing whether Documents No 3, No 4 and No 9 were confidential.

1. Arguments of the parties

47. In the first limb of the seventh ground of appeal, ABLV claims that the General Court failed to take account of the principle that directives cannot in themselves impose obligations on individuals. Accordingly, the ECB may not rely directly on the obligations contained in Directive 2013/36.

48. In the second limb of that ground of appeal, ABLV submits that, by accepting generic and unsubstantiated assertions from the ECB without requiring specific evidence, the General Court confined itself to conducting a merely formal review of the ECB’s conduct, thereby infringing the right to effective judicial protection (Article 47 of the Charter), the principle of judicial scrutiny of legality (Article 263 TFEU), and the principle of transparency (Article 15 TFEU and Article 1 TEU).

49. For its part, the ECB contends that the first alleged error is unsubstantiated: even if Regulation No 1024/2013 and Directive 2013/36 are not considered to be applicable to the case, the General Court confirmed the legality of the decision at issue in accordance with the criteria laid down in the judgment in Baumeister, the use of which, for the purposes of examining the confidentiality of documents under Article 4(1)(c) of Decision 2004/258, is not disputed in this appeal.

50. As for the second alleged error of law, the ECB contends that ABLV simply disputes the assessment of the evidence carried out by the General Court.

51. In support of the eighth ground of appeal, ABLV argues that the General Court did not apply the criteria laid down in the judgment in Baumeister with specific evidence, since it relied on generic, unsubstantiated assertions made by the ECB, to which the General Court granted an excessively broad discretion.

52. The ECB counters that the General Court set out precise reasons why the disclosure of Documents No 3, No 4 and No 9 would be potentially harmful.

2. Analysis

(a) The ECB’s duty of confidentiality

53. The General Court proceeds on the basis that Documents No 3, No 4 and No 9 reflect exchanges of information between the ECB, on the one hand, and the supervised institution (ABLV) or the SRB, on the other, in the course of the specific supervisory procedure relating to ABLV following FinCEN’s announcement.

54. On that basis, the General Court concludes that those documents fall within the scope of Article 27 of Regulation No 1024/2013 and Article 53 of Directive 2013/36, which concern professional secrecy and the exchange of information in the exercise of supervisory duties. (33)

55. In support of that finding, the judgment under appeal relies on Article 4(1)(c) of Decision 2004/258, pursuant to which ‘the ECB shall refuse access to a document where disclosure would undermine the protection of … the confidentiality of information that is protected as such under Union law’. The General Court therefore relies on the provisions of EU law applicable to the circumstances in which the documents to which access is sought were drawn up. (34)

56. In other words, according to the General Court, Article 4(1)(c) of Decision 2004/258 establishes a link between the rules governing public access to ECB documents and the rules of professional secrecy to which the ECB and its staff (and national authorities, where appropriate) are subject under EU law, seeking to ensure that the ECB complies with its obligations of professional secrecy. (35)

57. In short, the General Court applies Article 4(1)(c) of Decision 2004/258 which, in referring to the provisions of EU law which protect the confidentiality of documents, leads directly to Article 27 of Regulation No 1024/2013 and, as the case may be, to Article 53 of Directive 2013/36.

58. As the judgment under appeal points out in relation to the latter two provisions:

– Article 27(1) of Regulation No 1024/2013 imposes an obligation of professional secrecy on members of ECB staff with regard to information which they obtain in the context of prudential supervision; that obligation includes, inter alia, the duty to respect the confidentiality requirements imposed by all relevant acts of EU law; (36)

– Article 53(1) of Directive 2013/36 imposes professional secrecy on the Member State authorities that are competent in the area of prudential supervision. (37)

59. In my view, the General Court did not err in law by referring in this case to the abovementioned articles of Regulation No 1024/2013 and Directive 2013/36. Both provisions may be used to identify whether ‘the confidentiality of information that is protected as such under Union law’, which is excluded from public access under Article 4(1)(c) of Decision 2004/258, is applicable.

60. As far as Directive 2013/36 is concerned, the fact that it is cited by the General Court does not, contrary to ABLV’s assertion, amount to an infringement of Article 288 TFEU or the case-law interpreting it.

61. In any event, as the ECB argues, the General Court relied on the judgment in Baumeister to define the term ‘confidential information’ for the purposes of Article 4(1)(c) of Decision 2004/258.

62. Admittedly, that case-law, the principles of which (but not their application to the case) ABLV does not dispute, was laid down in connection with the interpretation of Article 54(1) of Directive 2004/39/EC. (38) However, that case-law may be applied to confidential information within the meaning of Article 4(1)(c) of Decision 2004/258.

63. In the alternative, I agree with the ECB that, even if the reference to Regulation No 1024/2013 and Directive 2013/36 were incorrect (which it is not), the General Court interprets Article 4(1)(c) of Decision 2004/258 in accordance with case-law which, having arisen in the context of the protection of confidentiality in the area of supervision of financial markets, may be applied by analogy to the prudential supervision of credit institutions.

(b) The ECB’s discretion and judicial review of its decisions

64. ABLV submits that the General Court allowed the ECB an excessively broad margin of discretion in respect of the criteria laid down in the judgment in Baumeister. The General Court would have accepted the ECB’s general (and, in ABLV’s submission, unsubstantiated) assertions when it examined whether the disclosure of certain documents undermined the proper functioning of the system of prudential supervision of credit institutions.

65. The General Court made the following observations on that matter: (39)

– the ECB enjoys a broad discretion for the purpose of determining whether the public interest concerning the protection of documents for internal use or the exchange of views between it and the competent national authorities might be undermined by the disclosure of the information contained in the documents at issue;

– therefore, the EU judicature’s review of legality in that regard must be limited to verifying whether the procedural rules and the obligation to state reasons have been complied with, whether the facts have been accurately stated and whether there has been a manifest error of assessment or a misuse of powers.

66. In point of fact, ABLV does not call into question in its appeal the correctness of the abstract considerations set out by the General Court concerning the ECB’s discretion for the purpose of examining the consequences of disclosure of a document. Nor does it criticise the scope of the review of that assessment which it falls to the General Court to conduct in the exercise of its jurisdiction.

67. ABLV’s complaint in its seventh ground of appeal is, rather, that the General Court accepted the ECB’s decision without requiring specific evidence and that it reduced its own review in that respect to a mere formality, thereby undermining the appellant’s right to effective judicial protection and the principle of transparency.

68. It is apparent from reading the judgment under appeal that the General Court conducted what was, in my view, a sufficient examination of the ECB’s assessment of the risk inherent in the disclosure of a number of the documents requested by ABLV. (40)

69. In particular, as regards Documents No 3, No 4 and No 9, the General Court applies the criteria laid down in the judgment in Baumeister in terms which, although ABLV does not agree with them, are neither unreasonable nor arbitrary. It is not enough for ABLV merely to disagree with the examination of the evidence conducted at first instance by the General Court for the ground of appeal to succeed.

70. The vagueness by which the reasoning in support of the seventh ground of appeal is vitiated is rectified in the eighth, in which ABLV refers specifically to the three documents at issue from the perspective of Baumeister. I shall therefore examine carefully the assessment carried out by the General Court of the ECB’s decision in relation to those documents.

(c) The General Court’s review of the ECB’s assessment of the confidential nature of Documents No 3, No 4 and No 9

71. ABLV states categorically that the General Court ‘misapplied the criteria established in [the judgment in Baumeister]’ and that the ECB ‘did not substantiate [those] criteria with specific evidence for Documents [No 3, No 4, and No 9]; instead, it relied on generic assumptions about harm to supervisory relationships which were not properly substantiated’. (41)

72. In paragraphs 81 to 89 of the judgment under appeal, which ABLV identifies as the paragraphs in which the alleged error of law was committed, the General Court examined whether the ECB was correct to find that Documents No 3, No 4 and No 9 were confidential.

73. The General Court states that ‘it is necessary to ascertain (i) whether those documents are not public, and (ii) whether their disclosure is likely to affect adversely the interests of the natural or legal person who provided them or of third parties, or the proper functioning of the prudential supervision system’. (42) In using those words, the General Court correctly identifies the criteria laid down in the judgment in Baumeister. (43)

74. The General Court further observes that ‘according to the case-law, an EU institution may rely on the hypothetical conduct of market operators and on the effects of that conduct on future interventions …, with the result that the ECB was legitimately entitled to rely on the risk that disclosure might result in a loss of trust between the ECB and those entities which, in the context of the prudential supervision mechanism, exchange information and analyses with it’. (44) It concludes therefore that ABLV’s arguments in that regard cannot succeed.

75. Having set down those propositions, the General Court rejects, in a reasoned manner, that the three documents at issue are public (first criterion laid down in the judgment in Baumeister). It does so in the following terms:

– ‘… a reading of Documents No 3 and No 4 supports the finding that … they consist of advice provided by the applicant’s external consultants regarding [s]ection 311 of the USA PATRIOT Act and of a memo provided by the applicant’s external consultants concerning the proposed FinCEN measure. … those documents contain analyses and strategies prepared by the applicant’s external consultants following the FinCEN announcement. There is no suggestion that the information contained in those documents is public.’ (45)

– ‘As for Document No 9, a reading of it supports the finding that it indeed consists of email exchanges between the ECB and the SRB which contain supervisory information that is not in the public domain.’ (46)

76. As it states in the judgment under appeal, the General Court reached that finding after conducting its own examination of the documents. Therefore, the General Court does not merely accept without scrutiny the arguments put forward by the ECB, contrary to ABLV’s claim.

77. The same is true in relation to the possible adverse effects on the interests of the person who provided that information or of third parties, or on the proper functioning of the system for monitoring which may arise as a result of the disclosure of the documents requested (second criterion laid down in the judgment in Baumeister).

78. In that connection, the General Court:

– notes that, ‘in the [decision at issue], the ECB stated that Documents No 3 and No 4 were provided by the applicant’s external consultants on the assumption that they would be kept confidential. According to the ECB, disclosure of those documents would be likely to affect the interests of those consultants. Document No 9 also contains supervisory analyses’; (47)

– then sets out the ECB’s arguments against the disclosure of Documents No 3, No 4 and No 9, namely that that ‘would … undermine the ECB’s interest in receiving frank, objective and comprehensive supervisory assessments. The ECB considers that disclosure would prevent it from receiving effective external assessments free from any potential external constraints linked to the risk of being misinterpreted or giving the wrong signal. According to the ECB, disclosure would therefore undermine the proper functioning of the prudential supervision system as a whole’; (48)

– lastly, does not accept without question the ECB’s assessment and instead, after comparing it with the arguments put forward a contrario by ABLV, finds that ‘the applicant has not succeeded in calling into question the ECB’s assessment that the disclosure of Documents No 3, No 4 and No 9 would have been likely to affect adversely the mutual trust between the ECB, on the one hand, and the supervised institutions and the SRB, on the other, trust which is necessary for the proper functioning of the prudential supervision system’. (49)

79. ABLV attempted to call into question the ECB’s explanation by arguing, ‘in essence, that the risk to the proper functioning of the supervisory system is unfounded in so far as the applicant has already been the subject of negative public statements on the part of the ECB and the SRB [and], moreover, that the ECB has not adduced any tangible evidence that the loss of trust relied on would actually occur’. (50)

80. ABLV’s argument did not succeed, simply because, in the General Court’s view, ‘although the ECB and the SRB published certain information concerning the situation of the applicant and its Luxembourg subsidiary following the FinCEN announcement in the interests of informing the public, it must be stated that the information contained in Documents No 3, No 4 and No 9 was not the subject of such publication’. (51)

81. At that juncture, the General Court referred to its case-law on the appropriateness of relying on the hypothetical conduct of market operators and on the effects of that conduct, as the ECB did to justify its decision ‘on the [basis of the] risk that disclosure might result in a loss of trust between the ECB and those entities which, in the context of the prudential supervision mechanism, exchange information and analyses with it’. (52)

82. In the light of the foregoing considerations, I do not believe that it is possible to find that the General Court, by relying on the ECB’s considerations, ‘relied on generic assumptions … which were not properly substantiated … [and] without examining whether the documents in question actually contained information meeting each [of the criteria laid down in the judgment in Baumeister]’. (53)

83. On the contrary, it is apparent from the judgment under appeal that the General Court (i) examined the documents at issue, and (ii) having compared the arguments put forward by the ECB with those of ABLV, found that, since it was appropriate to rely on the hypothetical conduct pleaded by the ECB in support of its claim that a risk existed, ABLV had not convincingly rebutted that claim.

84. Accordingly, the seventh and eighth grounds of appeal must be dismissed.

C. The ninth ground of appeal

85. In its ninth ground of appeal, ABLV complains that the General Court erred in law in its interpretation of Article 4(4) of Decision 2004/258.

86. The alleged error consists, essentially, in accepting that the ECB was not required to consult ABLV or the SRB about the possibility of disclosing Documents No 3, No 4 and No 9 (paragraphs 90 to 93 of the judgment under appeal), or to consult the third parties concerned if the disclosure of Documents No 7 and No 8 was possible (paragraphs 132 to 138 of the judgment under appeal).

1. Arguments of the parties

87. In developing the ninth ground of appeal (paragraph 61 of its appeal) ABLV refers solely to Documents No 3, No 4 and No 9, and not to Documents No 7 and No 8.

88. In connection with Documents No 3, No 4 and No 9, ABLV submits that they originated from or were prepared in conjunction with other institutions or bodies, and therefore, in accordance with Article 4(4) of Decision 2004/258, disclosure of those documents could be refused only if the ECB had provided a clear justification, which it did not. In ABLV’s submission, the General Court failed to examine whether the conditions for preventing access to those documents were met.

89. The ECB contends, essentially, that the judgment under appeal is compatible with Article 4(4) of Decision 2004/258.

2. Analysis

90. Pursuant to Article 4(4) of Decision 2004/258, ‘as regards third-party documents, the ECB shall consult the third party concerned with a view to assessing whether an exception in this Article is applicable, unless it is clear that the document shall or shall not be disclosed’. (54)

91. According to the General Court, in view of the nature and content of Documents No 3, No 4 and No 9, it is clear that the ECB should not disclose them. ‘Therefore, under Article 4(4) of Decision 2004/258, the ECB cannot … be criticised for not having consulted the applicant or the SRB.’ (55)

92. The General Court reached the same conclusion in relation to Documents No 7 and No 8, ‘in view of [their] nature and content’. (56) Since I have already pointed out that ABLV’s ninth ground of appeal does not include a detailed criticism of that part of the judgment, there is no reason to examine it.

93. The complaint which ABLV makes about the General Court is not persuasive.

94. First, and contrary to ABLV’s submission, the General Court did not merely accept the ECB’s assertion that it was clear that Documents No 3, No 4 and No 9 should not be disclosed. (57) More accurately, the General Court found by itself, in the light of the documents at issue, (58) that, on account of their nature and content, the ECB should not disclose those documents.

95. Secondly (although the General Court did not consider it), (59) the claim that the ECB should consult ABLV before granting its application for access is irrelevant, simply because ABLV was not a third party within the meaning of Article 4(4) of Decision 2004/258. (60)

96. Lastly, the SRB (in connection with Document No 9) and the external consultants (in connection with Documents No 3 and No 4) were indeed third parties within the meaning of that provision. Consultation of those parties was obligatory, in principle, in order to determine whether any of the exceptions laid down in Article 4 of Decision 2004/258 were applicable, unless the documents should clearly not be disclosed.

97. As I observed above, the General Court found that, ‘in view of the nature and content of Documents No 3, No 4 and No 9’, those documents were not to be disclosed. (61) Prior to that, the General Court held that the emails between the ECB and the SRB containing supervisory information about credit institutions were not in the public domain and that the information contained in the consultants’ reports was not public either. (62)

98. Admittedly, the General Court could have provided more extensive reasoning on this point, by restating the reasons on which it based its refusal of access to the documents, in so far as those documents were protected by the duty of confidentiality and where disclosure was liable to be harmful. I referred to those reasons, linked to information which is obtained in the course of the supervision of credit institutions, for which the SRB is responsible, or is provided by consultants whose interests may be affected, when I proposed that the seventh and eighth grounds of appeal should be dismissed.

99. Acceptance of those reasons (which, I stress, are not set out in paragraph 92 of the judgment under appeal but are implicit in its basis) would mean that it was unnecessary to consult the SRB or the external consultants in question.

100. In short, the ninth ground of appeal should also be dismissed.

V. Conclusion

101. On those grounds, I propose that the Court:

– dismiss the third, seventh, eighth and ninth grounds of appeal.

1 Original language: Spanish.

2 Decision of the European Central Bank of 4 March 2004 on public access to European Central Bank documents (OJ 2004 L 80, p. 42), as amended by Decision (EU) 2015/529 of the European Central Bank of 21 January 2015 (OJ 2015 L 84, p. 64) (‘Decision 2004/258’).

3 Decision LS/CL/2022/261; ‘the decision at issue’.

4 T‑100/23, ‘the judgment under appeal’, EU:T:2025:564.

5 Regulation 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) No 1093/2010 (OJ 2014 L 225, p. 1).

6 Decision adopted under reference LS/PS/2022/48.

7 The nine documents identified by the ECB are:

– the FinCEN press release concerning the measure taken against ABLV, dated 13 February 2018 (Document No 1);

– the FinCEN publication with the notice of proposed rule-making (NPRM) (Document No 2);

– advice provided by ABLV’s external consultants on section 311 of the USA PATRIOT Act, dated 13 February 2018 (Document No 3);

– a memo on the NPRM prepared for the ECB by ABLV’s external consultants (Document No 4);

– email exchanges within the ECB, summarising the issues relating to ABLV following receipt of news from the United States authorities, dated 13 February 2018 (Document No 5);

– email exchanges within the ECB, addressing the measure taken against the applicant following the receipt of news from the United States authorities, dated 13 February 2018 (Document No 6);

– the email exchange between the FCMC and the ECB regarding the measure taken by FinCEN against ABLV, dated 13 February 2018 (Document No 7);

– the email exchange between the ECB and the FCMC regarding the measure taken by FinCEN against ABLV, dated 13 February 2018 (Document No 8);

– the email exchange between the ECB and the SRB following the FinCEN announcement, dated 15 February 2018 (Document No 9).

8 Regulation of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).

9 Judgment of 17 December 2020, De Masi and Varoufakis v ECB (C‑342/19 P, ‘the judgment in De Masi and Varoufakis v ECB’, EU:C:2020:1035, paragraph 76).

10 The judgment in De Masi and Varoufakis v ECB, paragraph 77.

11 The judgment in De Masi and Varoufakis v ECB, paragraph 78.

12 The judgment in De Masi and Varoufakis v ECB, paragraph 48.

13 Judgment of 2 October 2014, Strack v Commission (C‑127/13 P, EU:C:2014:2250).

14 Judgment of 11 January 2017, Typke v Commission (C‑491/15 P, EU:C:2017:5).

15 Factors to which Article 6(3) of Regulation No 1049/2001 and its corresponding provision in Decision 2004/258 refer also in almost identical terms.

16 Paragraph 37 of the appeal.

17 Paragraphs 2 and 3 of the appeal.

18 Paragraph 33 of the appeal.

19 Paragraph 34 of the appeal.

20 Paragraph 36 of the appeal.

21 Paragraph 170 of the judgment under appeal.

22 Paragraph 173 of the judgment under appeal.

23 Paragraph 174 of the judgment under appeal.

24 Judgment of 20 March 2014, Rousse Industry v Commission (C‑271/13 P, EU:C:2014:175, paragraph 81).

25 Judgment of 2 October 2014, Strack v Commission (C‑127/13 P, EU:C:2014:2250, paragraph 79).

26 Point 4 of this Opinion.

27 Paragraph 177 of the judgment under appeal.

28 Paragraph 180 of the judgment under appeal.

29 Paragraph 181 of the judgment under appeal.

30 Council Regulation 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).

31 Directive of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ 2013 L 176, p. 338).

32 C‑15/16, ‘the judgment in Baumeister’, EU:C:2018:464.

33 Paragraph 80 of the judgment under appeal.

34 Paragraph 80 of the judgment under appeal.

35 Paragraph 80 of the judgment under appeal.

36 Paragraph 71 of the judgment under appeal.

37 Paragraph 72 of the judgment under appeal. Pursuant to Article 53(1) of Directive 2013/36, professional secrecy prohibits those authorities, in principle, from disclosing confidential information which they receive unless that information is in summarised or aggregated form such that the credit institutions concerned cannot be identified. There are two exceptions to that principle which allow the disclosure of confidential information: first, in cases involving the application of criminal law and, secondly, in cases related to civil or commercial proceedings, subject to the twofold condition, in the case of such civil and commercial proceedings, that (i) the credit institution with which the confidential information is concerned has been declared bankrupt or is being compulsorily wound up and (ii) the confidential information does not concern third parties involved in attempts to rescue that institution.

38 Directive of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC (OJ 2004 L 145, p. 1).

39 Paragraph 106 of the judgment under appeal, which relies on paragraph 54 of the judgment of 12 March 2019, De Masi and Varoufakis v ECB (T‑798/17, EU:T:2019:154). The Court of Justice refers to paragraph 54 of that judgment of the General Court in paragraph 42 of the judgment in De Masi and Varoufakis v ECB, in connection with the discretion that the General Court recognised the ECB as having and the restricted scope of the review exercised by the General Court.

40 That is sufficiently confirmed by paragraphs 107 to 131 of the judgment under appeal, examining the disclosure of Documents No 5 to No 8.

41 Paragraph 58 of the appeal, which further states that the General Court ‘erred in law by accepting such unsubstantiated assertions without examining whether the documents in question actually contained information meeting each [of the criteria laid down in the judgment in Baumeister]’.

42 Paragraph 81 of the judgment under appeal.

43 The judgment in Baumeister, paragraph 46: classification as ‘confidential information that is covered, consequently, by the obligation to maintain professional secrecy … Information held by the competent authorities (i) which is not public and (ii) the disclosure of which is likely to affect adversely the interests of the natural or legal person who provided that information or of third parties, or the proper functioning of the system for monitoring … is to be so classified.’

44 Paragraph 86 of the judgment under appeal.

45 Paragraph 82 of the judgment under appeal.

46 Paragraph 82 of the judgment under appeal.

47 Paragraph 83 of the judgment under appeal.

48 Paragraph 83 of the judgment under appeal.

49 Paragraph 84 of the judgment under appeal.

50 Paragraph 84 of the judgment under appeal.

51 Paragraph 85 of the judgment under appeal.

52 Paragraph 86 of the judgment under appeal.

53 Paragraph 58 of the appeal.

54 Emphasis added. Of the language versions I have looked at, a large proportion use the same adjective: ‘clear’ in English; ‘clair’ in French; ‘klar’ in German; ‘chiaro’ in Italian; ‘claro’ in Portuguese. The Spanish-language version uses the word ‘notorio’, which adds an additional tinge of certainty.

55 Paragraph 92 of the judgment under appeal.

56 Paragraph 134 of the judgment under appeal.

57 That is the criticism contained in paragraph 61 of the appeal.

58 In paragraph 82 of the judgment under appeal, reference is made to the General Court’s reading of those documents. Although not expressed in those terms, the same may be inferred from paragraph 92 of the judgment under appeal.

59 It did do so, however, in relation to the application for access to Documents No 7 and No 8. In paragraph 135 of the judgment under appeal, the General Court acknowledges that ABLV was not a third party within the meaning of Article 4(4) of Decision 2004/258.

60 As for the advice provided by ABLV’s external consultants to that institution (Document No 3) or the memo which those consultants working for ABLV provided to the ECB (Document No 4), it is logical to assume that ABLV was sufficiently aware of their content.

61 Paragraph 92 of the judgment under appeal.

62 Paragraph 82 of the judgment under appeal.

Opinion of Advocate General Campos Sánchez-Bordona delivered on 18 June 2026.###

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