Wednesday, June 20, 2012

Access to Documents: Grexit edition

By way of unasked-for favour to my Ideas on Europe colleague Ron Patz, I thought I'd take a look at the pending case ofThesing and Bloomberg Finance v. ECB, which was in the news last week because the General Court held its hearing in the case. As far as Access to Documents cases go, this one is a whopper.
What the applicants want is access to two ECB documents about the way Greece cooked the books to get into the Euro, and about the way the EU authorities might have helped them or at least turned a blind eye:
  • A note entitled The impact on government deficit and debt from off-market swaps. The Greek case (SEC/GovC/X/10/88a);
  • A second note, entitled The Titlos transaction and possible existence of similar transactions impacting on the euro area government debt or deficit levels (SEC/GovC/X/10/88b).
The ECB argues, with some plausibility, that releasing these documents in 2010 would have caused insurmountable problems for Greece's credit position, and that releasing them now would still cause serious problems. (I'm distilling their arguments from this Bloomberg News article, because obviously the pleadings are not public and I did not personally attend the hearing. Note that the one of the authors of the article is Ms. Thesing, one of the applicants.)
"Disclosing the files when Bloomberg News first sought them in 2010 would have “fueled negative perceptions about Greece’s ability to honor its debt,” ECB lawyer Marta Lopez Torres said at a hearing of the European Union’s General Court in Luxembourg today. “It’s the same now with Spain” which “isn’t able to borrow money,” she said. “Markets are reacting in very volatile ways. It’s affecting the euro economy.”"
Unfortunately, that may or may not be an acceptable reason not to give access under the relevant legislation, includingRegulation 1049/2001.
Right off the bat, it is important to note that that Regulation only applies to the Commission, the Parliament and the Council, and not to the EU Agencies or to the ECB. (Cf. art. 1(a).) However, the Regulation implements art. 15 TFEU, which unfortunately also does not help the applicants:
 3. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to documents of the Union’s institutions, bodies, offices and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with this paragraph.
Each institution, body, office or agency shall ensure that its proceedings are transparent and shall elaborate in its own Rules of Procedure specific provisions regarding access to its documents, in accordance with the regulations referred to in the second subparagraph.
The Court of Justice of the European Union, the European Central Bank and the European Investment Bank shall be subject to this paragraph only when exercising their administrative tasks.(...)
When supervising Greece's Euro-shenanigans, the ECB quite obviously was not exercising an administrative task. However, turning to the ECB's Rules of Procedure, we find in art. 23:
 Article 23
Confidentiality of and access to ECB documents
23.1. The proceedings of the decision-making bodies of the ECB and of any committee or group established by them shall be confidential unless the Governing Council authorises the President to make the outcome of their deliberations public.
23.2. Public access to documents drawn up or held by the ECB shall be governed by a decision of the Governing Council.
23.3. Documents drawn up by the ECB shall be classified and handled in accordance with the rules laid down in an Administrative Circular. They shall be freely accessible after a period of 30 years unless decided otherwise by the decision making bodies.
The documents that are the subject of the current application are documents drawn up by the ECB, but not covered by art. 23.1. So we look for the Decision mentioned in par. 2. The structure of this Decision is analogous to the structure of Regulation 1049/2001; access is given unless an exception applies. Unfortunately for Bloomberg, these exceptions include plenty of basis for refusing access to the documents under discussion here, assuming they are as explosive as claimed:
Art. 4
1. The ECB shall refuse access to a document where disclosure would undermine the protection of:
(a) the public interest as regards: (...)
— the financial, monetary or economic policy of the Union or a Member State,
— the internal finances of the ECB or of the NCBs, (...)
— international financial, monetary or economic relations,
— the stability of the financial system in the Union or in a Member State;
6. The exceptions as laid down in this Article shall only apply for the period during which protection is justified on the basis of the content of the document. The exceptions may apply for a maximum period of 30 years unless specifically provided otherwise by the ECB's Governing Council. (...)
So unless the ECB is significantly overstating the potential damage that would be caused by releasing these documents, I don't see how the applicants can win. I certainly do not read art. 4 of ECB Decision 2004/3 as requiring an explicit weighing of the public interest in disclosure, as claimed by the applicants in their application to the Court. Such a balancing exercise is appropriate when dealing with the exceptions of art. 4(2), where it is explicitly required:
 2. The ECB shall refuse access to a document where disclosure would undermine the protection of (...), unless there is an overriding public interest in disclosure.
From this it follows, reasoning a contrario, that no balancing is required under paragraph 1. Likewise, paragraph 3 also contemplates "an overriding public interest", but I do not read that as an alternative to paragraph 1, but rather as an additional filter. When it comes to internal documents, par. 3 says, the decision for which the documents have been prepared has to have already been taken, there has to be an overriding public interest justifying access, and only then do these documents get treated the same way as other documents.
In all of this I am somewhat hampered by the fact that I do not have access to the ECB's decision, or to the pleadings. From Bloomberg's application, it seems like the ECB also relied on art. 4(2) of Decision 2004/3, which is odd because the exceptions of par. 1 seem more than sufficient. So ultimately we shall have to see what the General Court does.

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