MeSoFa v SRB: European General Court upholds document access refusal in resolution proceedings

The General Court's judgement in MeSoFa Vermögensverwaltungs AG v Single Resolution Board (Case T-290/23) provides important clarification on the application of exceptions to public access under Regulation (EC) No 1049/2001 in the context of bank resolution proceedings. The case concerned MeSoFa's attempts to access documents relating to the Single Resolution Board's adoption of a resolution scheme for Sberbank d.d. Croatia.

MeSoFa, formerly the sole shareholder of Sberbank Croatia, sought access to Decision SRB/EES/2022/17 (suspending payment obligations) and Decision SRB/EES/2022/21 (placing the bank under resolution), including valuations. Following partial disclosure, the applicant pursued multiple confirmatory applications and appeals before the SRB Appeal Panel, culminating in this judicial review.

Procedural developments and appellate guidance

The Appeal Panel's first decision in March 2023 found insufficient reasoning in the SRB's initial refusal and remitted the case. The SRB subsequently adopted a second confirmatory decision in December 2023, granting wider partial access whilst maintaining redactions on commercial interests and investigatory grounds. The Appeal Panel confirmed this approach in May 2024.

The General Court found no need to adjudicate on the earlier decisions, as the second confirmatory decision and corresponding Appeal Panel decision replaced them entirely in their effects on the applicant. Similarly, any implied negative decision was rendered moot by the express second confirmatory decision.

Application of documentary access exceptions

The Court rejected challenges to Article 20 of the Appeal Panel's Rules of Procedure, which sets the starting point for the one-month decision period when evidence is complete. This interpretation aligns with the quasi-judicial functions of the Appeal Panel and ensures adversarial procedures, consistent with Article 85(7) of Regulation No 806/2014.

Significantly, the Court upheld the SRB's reliance on new grounds for refusal following remittal. Institutions may invoke alternative Article 4 exceptions when reassessing access requests, provided proper justification exists. The SRB appropriately applied the commercial interests exception under Article 4(2) to information concerning Sberbank Croatia's liquidity position, deposit outflows, and counterbalancing capacity. Such commercially sensitive data could adversely affect an active credit institution and discourage future cooperation with resolution authorities.

Protection of investigatory processes

The Court confirmed that the independent valuer's identity and role fell within the Article 4(2) exception protecting investigations. The concept of "investigation" encompasses structured procedures collecting and analysing information to enable institutional decision-making. As the Article 20(16) valuation procedure remained ongoing, disclosure could undermine the valuer's independence and freedom from external pressure.

MeSoFa's assertion of overriding public interest failed, offering only general considerations about transparency in the SRB's second resolution scheme. Such broad statements cannot override specific grounds justifying non-disclosure.

Consultations and procedural safeguards

The Court rejected arguments that the SRB merely deferred to third-party objections. The second confirmatory decision demonstrated independent assessment of applicable exceptions, with third-party consultations informing rather than determining the outcome. References to the ECB's views on commercial interests constituted contextual support rather than reliance on Decision 2004/258/EC provisions.

The judgement clarifies that remittal following Appeal Panel guidance does not require additional consultation with applicants beyond existing Regulation 1049/2001 procedures. The confirmatory application process itself provides adequate opportunity to challenge access refusals.

The Court's approach balances transparency obligations against legitimate confidentiality interests in resolution proceedings, whilst confirming the Appeal Panel's quasi-judicial role in reviewing SRB decisions on document access.