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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Thesing and Bloomberg Finance v ECB (Order of the Court) [2014] EUECJ C-28/13 (06 February 2014)
URL: http://www.bailii.org/eu/cases/EUECJ/2014/C2813_CO.html
Cite as: ECLI:EU:C:2014:230, [2014] EUECJ C-28/13, EU:C:2014:230

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ORDER OF THE COURT (Fifth Chamber)

6 February 2014(*)

(Appeal – Article 181 of the Rules of Procedure of the Court of Justice – Article 169(2) of the Rules of Procedure of the Court of Justice – Content required in the application initiating an appeal)

In Case C-28/13 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 16 January 2013,

Gabi Thesing, residing in London (United Kingdom),

Bloomberg Finance LP, established in Wilmington (United States),

represented by M. Stephens and R. Lands, Solicitors, and by T. Pitt-Payne QC,

appellants,

the other party to the proceedings being:

European Central Bank (ECB), represented by M. López Torres and S. Lambrinoc, acting as Agents,

defendant at first instance,

THE COURT (Fifth Chamber),

composed of T. von Danwitz (Rapporteur), President of the Chamber, E. Juhász, A. Rosas, D. Šváby and C. Vajda, Judges,

Advocate General: P. Mengozzi,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to give a decision by reasoned order, pursuant to Article 181 of the Rules of Procedure of the Court,

makes the following

Order

1        By their appeal, Ms Thesing and Bloomberg Finance LP (‘Bloomberg’) seek to have set aside the judgment of the General Court of the European Union of 29 November 2012 in Case T-590/10 Thesing and Bloomberg Finance v ECB (‘the judgment under appeal’), by which the General Court dismissed their action for annulment of the decision of the Executive Board of the European Central Bank (ECB), communicated by letter of 21 October 2010, confirming the refusal of access to two documents concerning the public deficit and the public debt of the Hellenic Republic (‘the contested decision’).

 Legal context

2        According to Article 1 of Decision 2004/258/EC of the European Central Bank of 4 March 2004 on public access to European Central Bank documents (OJ 2004 L 80, p. 42), the purpose of that decision is ‘to define the conditions and limits according to which the ECB shall give public access to ECB documents’.

3        Under Article 2(1) of that decision, ‘[a]ny citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to ECB documents, subject to the conditions and limits defined in this Decision’.

4        Article 4(1) to (3) of Decision 2004/258 provides:

‘1.      The ECB shall refuse access to a document where disclosure would undermine the protection of:

(a)      the public interest as regards:

–        the confidentiality of the proceedings of the ECB’s decision-making bodies,

–        the financial, monetary or economic policy of the Community or a Member State,

–        the internal finances of the ECB or of the NCBs,

–        protecting the integrity of euro banknotes,

–        public security,

–        international financial, monetary or economic relations;

…

2.      The ECB shall refuse access to a document where disclosure would undermine the protection of:

–        the commercial interests of a natural or legal person, including intellectual property,

–        court proceedings and legal advice,

–        the purpose of inspections, investigations and audits,

unless there is an overriding public interest in disclosure.

3.      Access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the ECB or with NCBs shall be refused even after the decision has been taken, unless there is an overriding public interest in disclosure.’

5        In accordance with Article 7(2) of that decision, ‘[i]n the event of total or partial refusal, the applicant may, within 20 working days of receiving the ECB’s reply, make a confirmatory application asking the ECB’s Executive Board to reconsider its position. …’.

 Background to the dispute and the contested decision

6        Ms Thesing is a journalist. She works for Bloomberg, which operates in London (United Kingdom) under the name of Bloomberg News.

7        On 20 August 2010, Ms Thesing applied to the ECB for access to two documents that dealt with the use of derivative transactions in deficit financing and in public debt management in Greece and in the euro area. By letter of 17 September 2010, the ECB’s Director General Secretariat and Language Services informed Ms Thesing of the decision not to grant access to the requested documents.

8        On 28 September 2010, the appellants sent a confirmatory application to the ECB, in accordance with Article 7(2) of Decision 2004/258, requesting that the Executive Board of the ECB reconsider its position concerning the refusal to grant access to the documents at issue.

9        By letter of 21 October 2010, the President of the ECB informed Ms Thesing of the contested decision. That decision was based on the protection of the public interest as regards the economic policy of the European Union and of the Hellenic Republic and on the protection of the ECB’s internal deliberations and consultations, pursuant to the second indent of Article 4(1)(a) and to Article 4(3) of Decision 2004/258. In the case of the second document, the refusal was also based on the protection of the commercial interests of a natural or legal person, pursuant to the first indent of Article 4(2) of that decision.

 The procedure before the General Court and the judgment under appeal

10      By application lodged at the Registry of the General Court on 27 December 2010, the appellants brought an action for annulment of the contested decision, for an order that the ECB grant them access to the documents at issue, and for an order requiring the ECB to pay the costs.

11      The ECB contended that that action should be dismissed and that the appellants should be ordered to pay the costs.

12      By way of a measure of inquiry, the General Court ordered the ECB to produce the two documents at issue, stating that they would not be disclosed to the appellants. The ECB complied with that measure of inquiry within the prescribed time-limit.

13      The General Court dismissed the action as being in part inadmissible and in part unfounded, and ordered the appellants to pay the costs.

14      The General Court held, in particular, that the ECB was entitled to base its refusal to grant access to the documents at issue on the exception to the right of access provided for in the second indent of Article 4(1)(a) of Decision 2004/258.

 The procedure before the Court of Justice and the forms of order sought

15      The appellants claim that the Court should:

–        set aside the judgment under appeal;

–        annul the contested decision;

–        set aside the judgment under appeal in so far as it orders them to pay the costs incurred by the ECB; or

–        alternatively, refer the case back to the General Court for determination in accordance with the Court’s ruling on the points of law raised in the present appeal.

16      The ECB contends that the Court should dismiss the appeal and order the appellants to pay the costs.

17      By order of the President of the Court of 6 November 2013, the applications for leave to intervene submitted by Media Legal Defence Initiative, Access Info Europe, Guardian News and Media Ltd were dismissed.

 The appeal

18      Under Article 181 of its Rules of Procedure, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal in whole or in part.

19      In support of their appeal, the appellants raise five grounds, the last of which relates to the decision as to costs.

 The first four grounds of appeal

 Arguments of the parties

20      By their first ground of appeal, the appellants claim that the General Court erred in law in its interpretation of Article 4(1)(a) of Decision 2004/258. The second ground of appeal alleges that the General Court erred in law inasmuch as it held that the ECB was entitled to conclude that disclosure of the documents requested by the appellants would have undermined the economic policy of the European Union and of the Hellenic Republic. The third ground of appeal alleges a misinterpretation of Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950. By their fourth ground of appeal, the appellants submit that, in failing to consider their arguments relating to Article 4(2) and (3) of Decision 2004/258, the General Court erred in law.

21      The ECB’s primary contention is that the appeal is inadmissible. It observes, first, that the appeal does not satisfy the substantive requirements laid down in Articles 21, 56 and 58 of the Statute of the Court of Justice of the European Union and in Article 169 of the Rules of Procedure. In particular, the appellants do not state precisely the grounds of the judgment under appeal, or the specific paragraphs of that judgment, which are contested in their appeal. It contends that the reference to those paragraphs in the appellants’ reply cannot remedy that irregularity. In addition, it argues, the appellants merely allege that the General Court committed several errors of law, without putting forward arguments in support of that allegation.

22      Secondly, the ECB submits that the appeal does not satisfy the formal requirements laid down in Article 168(1)(d) of the Rules of Procedure of the Court since the appellants submitted only a ‘summary of appellants’ pleas in law and main arguments’ that did not contain the pleas in law and legal arguments relied on.

 Findings of the Court

23      By their first four grounds of appeal, the appellants take issue with different aspects of the General Court’s reasoning.

24      However, those grounds do not contain any particulars as to the paragraphs of the judgment under appeal that are allegedly vitiated by an error of law, nor arguments to establish in what respect the General Court made such an error. To the extent that the appeal contains, in those grounds of appeal, particulars going beyond a mere statement of the grounds, it merely puts forward claims without providing further explanations.

25      As the Court has repeatedly held, an appeal must state precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal, failing which the appeal or plea concerned is inadmissible (see, inter alia, Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I-5425, paragraph 426; Case C-501/11 P Schindler Holding and Others v Commission [2013] ECR, paragraph 43; Case C-120/12 P Rintisch v OHIM [2013] ECR, paragraph 49; and Case C-560/12 P Wam Industriale v Commission [2013] ECR, paragraph 42). An appeal that does not contain any arguments aimed at specifically identifying the error of law by which the judgment in question is allegedly vitiated does not satisfy that requirement (see, inter alia, order of 27 June 2013 in Case C-566/12 P Baleanu v Commission, paragraph 13, and judgment in Wam Industriale v Commission, paragraph 42).

26      The Court has also made clear that a mere abstract statement of the grounds in the appeal does not satisfy the requirements set out in Article 58 of the Statute of the Court and in Article 168(1)(d) of its Rules of Procedure (see, inter alia, Case C-51/92 P Hercules Chemicals v Commission [1999] ECR I-4235, paragraph 113, and Wam Industriale v Commission, paragraph 43).

27      In this regard, Article 169(2) of the Rules of Procedure specifies that the pleas in law and legal arguments relied on must identify precisely those points in the grounds of the decision of the General Court which are contested.

28      An appeal that does not have such characteristics cannot be the subject of a legal assessment which would allow the Court to exercise its function in the area under examination and to carry out its review of legality (Wam Industriale v Commission, paragraph 44).

29      Besides, the rule laid down in Article 169(2) of the Rules of Procedure makes it possible for equality between litigants to be maintained. Whether the Court is able easily to identify the contested points in the grounds of a judgment under appeal depends on a number of factors, such as the length of the judgment under appeal and that of the appeal itself, the number of grounds of appeal and the complexity of the reasoning developed in both the judgment under appeal and the appeal itself. However, the admissibility of an appeal cannot turn on such factors.

30      Moreover, in view of the function of the reply as set out in Article 175(1) of the Rules of Procedure, the reply cannot remedy the irregularity arising from a failure to comply with Article 169(2) in the application initiating the appeal.

31      Accordingly, and having regard to the nature of the arguments submitted to the Court as set out above, the first four grounds of appeal must be rejected as being manifestly inadmissible.

 The fifth ground of appeal, alleging an error in law in relation to the costs

32      The appellants claim that the General Court ought not to have ordered them to pay the costs incurred by the ECB since they themselves had not applied for an order that the ECB pay the costs incurred by the appellants in the event of their application succeeding.

33      In this connection, suffice it to note that, according to settled case-law, where all the other pleas put forward in an appeal have been rejected, any plea challenging the decision of the General Court on costs must be rejected as being inadmissible by virtue of the second paragraph of Article 58 of the Statute of the Court, which provides that no appeal is to lie regarding only the amount of the costs or the party ordered to pay them (see, inter alia, Joined Cases C-57/00 P and C-61/00 P Freistaat Sachsen and Others v Commission [2003] ECR I-9975, paragraph 124; Case C-263/09 P Edwin v OHIM [2011] ECR I-5853, paragraph 78; and Joined Cases C-514/11 P and C-605/11 P LPN and Finland v Commission [2013] ECR, paragraph 100).

34      Since all of the other grounds of appeal put forward by the appellants have been rejected, the last ground of appeal, relating to the allocation of costs, must, accordingly, be declared inadmissible.

35      Since none of the grounds of appeal put forward by the appellants has been upheld, the appeal must be dismissed in its entirety.

 Costs

36      In accordance with Article 184(2) of the Rules of Procedure, where the appeal is unfounded, the Court is to make a decision as to the costs.

37      Under Article 138(1) of those Rules, which is applicable to the procedure on appeal by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since Ms Thesing and Bloomberg have been unsuccessful and the ECB has applied for costs to be awarded against them, Ms Thesing and Bloomberg must be ordered to pay the costs.

On those grounds, the Court (Fifth Chamber) hereby:

1.      Dismisses the appeal;

2.      Orders Ms Gabi Thesing and Bloomberg Finance LP to pay the costs.

[Signatures]

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* Language of the case: English.

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