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Decision on the European Central Bank’s (ECB) refusal to grant public access to documents concerning contingency and preparedness measures related to Russia’s invasion of Ukraine (case 1327/2022/SF)

Monday | 12 September 2022

The complainant requested public access to documents concerning contingency and preparedness measures related to Russia’s invasion of Ukraine. The European Central Bank (ECB) refused public access to the two documents it identified, relying on a provision in the Treaties which requires that the proceedings of its Governing Council not be made public. The ECB also invoked several exceptions under its rules on public access to documents, including that full disclosure would undermine the protection of the public interest as regards the financial, monetary or economic policy of the Union and international financial relations.

The Ombudsman inquiry team inspected the documents at issue. Based on this inspection and considering the wide margin of discretion that the ECB enjoys where it considers that the public interest as regards the Union’s international financial relations is at risk, the Ombudsman found that the ECB’s decision to refuse access to one of the requested documents was not manifestly wrong. As regards the other document, the Ombudsman considered that the ECB’s reliance on the confidentiality of the proceedings of the Governing Council meetings, as laid down in the Treaties, was justified.

The Ombudsman closed the inquiry finding no maladministration.

Decision in case 1871/2020/OAM on how the European Central Bank (ECB) dealt with a request for public access to documents related to the German constitutional court’s ruling on the ECB’s Public Sector Purchase Programme

Monday | 22 March 2021

The case concerned the ECB’s decision to refuse public access to documents concerning its Public Sector Purchase Programme (PSPP). The documents had been shared with the German Federal Government so as to allow it to assess the proportionality of the PSPP in the aftermath of a ruling of the German constitutional court.

In refusing access, the ECB relied on a Treaty rule requiring that the proceedings of the ECB’s Governing Council not be made public. It also relied on the need to protect the public interest as regards the confidentiality of the proceedings of its decision-making bodies, the need to protect the monetary policy of the Union and the confidentiality of documents intended for internal use.

The Ombudsman found that the ECB’s refusal to grant public access was justified. In drawing this conclusion, the Ombudsman noted that one document was covered by Treaty rules requiring that proceedings of the ECB’s Governing Council not be made public. The ECB had adequately explained why disclosing the other documents would undermine the public interest as regards monetary policy. While noting the significant public interest in the matter, the Ombudsman took account of the ECB’s efforts to provide the complainant, and the public, with as much information as possible about it and closed the case.

Decision in case 1874/2020/MAS on the European Central Bank’s refusal to grant public access to documents containing detailed information regarding two asset purchase programmes

Tuesday | 09 March 2021

The case concerned a request for public access to documents containing detailed information regarding two asset purchase programmes of the European Central Bank (ECB). In refusing access, the ECB argued that disclosure could undermine the protection of the public interest as regards the financial, monetary or economic policy of the Union or a Member State, which is an interest protected by law. The complainant considered that the ECB had not presented sufficient evidence for how disclosure of the information requested would negatively affect the public interest invoked and that the information should therefore be disclosed.

The ECB enjoys wide discretion when assessing how best to protect the public interest invoked, namely the protection of the financial, monetary or economic policy of the Union or a Member State. It can, for example, base its considerations on how disclosure might affect the behaviour of markets and market participants. The ECB has in this case provided a reasonable explanation on how markets and market participants could use the requested information to undermine the financial, monetary or economic policy of the Union or a Member State. The ECB’s decision to refuse public access was therefore justified.

The Ombudsman notes the ECB’s statement that it already publishes as much information as possible on the PEPP and CSPP on its website. She encourages the ECB to evaluate regularly whether further information on these programmes can be published. This is likely to become of even greater importance as the public looks to the ECB for proof that it is living up to the ambitious statements of its President as regards the Bank’s efforts to make monetary policy “greener”.

The Ombudsman closed the inquiry finding no maladministration.

Decision in case 1700/2020/OAM on how the European Commission dealt with a request for public access to a legal note on the German constitutional court’s ruling about the European Central Bank and the Court of Justice of the EU

Wednesday | 27 January 2021

The case concerned the European Commission’s refusal to grant public access to a note of its legal service on the German constitutional court’s ruling concerning a programme of the European Central Bank and a related judgment of the Court of Justice of the EU. In refusing access to the document, the Commission relied on the need to protect the Union’s financial, monetary and economic policy, as well as the need to protect legal advice and its decision-making process.

The Ombudsman inspected the document and found that there was no obvious error in the Commission’s assessment. She thus closed the inquiry finding no maladministration.

The judgment of the German constitutional court is unprecedented in terms of possible consequences on the EU legal order. The Ombudsman recognises that the public has an interest in being reassured that the Commission is properly assessing and, where needed, acting upon such consequences, in accordance with its role as guardian of the Treaties. She is confident the Commission will continue to keep the public informed, to the extent possible, of any future steps it decides to take in response to the judgment.