link to page 1 link to page 1 link to page 1
ECB-UNRESTRICTED
DIRECTORATE GENERAL SECRETARIAT
Paul Schreiber
Campaigner on the Supervision of Financial Actors
Reclaim Finance
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxx.xxx
31 March 2021
Reference: LS/PS/2021/13
Request for public access to ECB documents
Dear Mr Schreiber,
On 15 September 2020 the European Central Bank (ECB) received your application for access to documents
which contain the following information: the specific set of ESG, sustainable or climate related criteria used to
invest the ECB's own funds, and/or; the detailed SRI strategy and principles of the ECB on its own funds.
On 3 February 2021, this request, your third application for access to ECB documents, has started being
processed
1. On 2 March 2021, in line with Article 7(3) of Decision ECB/2004/3
2 on public access to ECB
documents and owing to the increased workload, the ECB extended the stipulated time limit for reply by 20
working days.
Introductory remarks
The ECB’s own funds portfolio consists of the invested counterpart of the ECB’s paid-up capital as well as
amounts held from time to time in its general reserve fund and provisions against financial risks. The purpose
of this portfolio is to provide income to help fund the ECB’s operating expenses which are not related to the
performance of its supervisory tasks. This portfolio is invested in euro-denominated assets with the objective
of maximising returns, subject to the limits imposed in terms of risk
3. In addition, ECB’s own funds portfolio
together with the staff pension fund are part of the Eurosystem non-monetary policy portfolios,
including the
assets held by Eurosystem central banks that are not related to monetary policy operations.
1 For the sake of good administration, you were informed that the processing of your request was put on hold until your previous
two requests (reference: LS/PS/2020/21 and reference: LS/PS/2020/36), one confirmatory application request (reference:
CL/20/282) and the inquiry of the European Ombudsman following your complaint about the ECB’s refusal to grant public
access to documents containing the separate bond value of the assets held by the ECB and the Eurosystem under the CSPP
and PEPP (your confirmatory application with reference: CL/20/282), were finalised.
2 Decision ECB/2004/3 of 4 March 2004 on public access to European Central Bank documents (OJ L 80, 18.3.2004, p. 42).
3 See ECB website:
https://www.ecb.europa.eu/ecb/tasks/reserves/html/index.en.html.
1
link to page 2 link to page 2 link to page 2 link to page 2
ECB-UNRESTRICTED
For its
own funds portfolio, the ECB follows a sustainable and responsible investment (SRI) strategy
that targets an increase in its share of green securities over time4. This aims to contribute, within the
ECB’s mandate, to global efforts to promote environmental objectives – including the EU climate goals – and
to combat climate change. Furthermore, on 25 January 2021, the ECB announced its decision to
invest a
share of its own funds portfolio
in the euro-denominated green bond investment fund for central banks
(EUR BISIP G2) established by the Bank for International Settlements (BIS) and focused on renewable energy
production, energy efficiency and other environmentally friendly projects. This investment complements direct
purchases of green bonds in secondary markets currently amounting to 3.5% of this portfolio, with a total
market value of €20.8 billion to be increased over the coming years
5.
As part of the common Eurosystem stance for the application of climate change-related SRI principles to euro-
denominated non-monetary policy portfolios announced on 4 February 2021
6, the ECB will prepare annual
climate-related disclosures for its own funds portfolio within the next two years
7. The disclosure aims to
increase the awareness and understanding of climate risks while promoting climate-related disclosures. The
common Eurosystem stance follows extensive preparatory work within the Eurosystem and has also benefited
from the analysis and is aligned with the recommendations of the Network of central banks and supervisors for
Greening the Financial System, which is chaired by the ECB.
Identification of the requested documents
After having carefully examined your request on the SRI strategy and principles currently applicable to the
ECB’s own funds portfolio in line with Decision ECB/2004/3, the ECB has identified three confidential ECB
documents which are of relevance to your application, namely; (i) one Executive Board memo and (ii) one
background note, both documents discussed by the Executive Board during December 2019, on the status,
developments and proposals regarding the current ECB’s SRI strategy for the ECB’s own funds portfolio.
These documents also contain the steps to integrate SRI considerations in the ECB’s own funds portfolio,
suggesting concrete proposals to set-up the strategy; and (iii) one Executive Board memo considered in
January 2021 also discussing the implementation progress and update of the targets.
Assessment of disclosure
Following a thorough assessment in line with Decision ECB/2004/3, we regret to inform you that the three
identified documents cannot be disclosed since their disclosure would undermine the interests protected under
the first sub-paragraph of Article 4(3) of Decision ECB/2004/3 (“confidentiality of documents drafted or
4 See ECB (2021)
, ECB to invest in Bank for International Settlements’ green bond fund, 25 January 2021.
5 See Lagarde, C. (2021)
, European Parliament plenary debate on the ECB Annual Report, 8 February 2021.
6 See ECB (2021)
Decisions taken by the Governing Council of the ECB (in addition to decisions setting interest rates),
3 February 2021.
7 See ECB (2021),
Eurosystem agrees on common stance for climate change-related sustainable investments in non-monetary
policy portfolios, 4 February 2021 an
d letter from the ECB President to Mr Markus Ferber, MEP, on climate change,
5 February 2021.
2
link to page 3 link to page 3
ECB-UNRESTRICTED
received by the ECB for internal use as part of deliberations and preliminary consultations within the ECB”),
and the third indent of Article 4(1)(a) of Decision ECB/2004/3 (“the internal finances of the ECB or of the
NCBs”). Furthermore, in assessing the feasibility of partial disclosure, we would like to inform you that all
disclosable information contained in the identified documents has already been made publicly available on the
ECB website. In addition, the ECB has already provided exhaustive information on the way its own funds
portfolio is invested and managed with a view to integrate climate change-related SRI considerations in its
policies
8.
The following explanations clarify the ECB’s decision not to disclose the requested documents.
(i) Confidentiality of documents drafted or received by the ECB for internal use as part of deliberations
and preliminary consultations within the ECB, or for exchanges of views between the ECB and NCBs
Pursuant to the first sub-paragraph of Article 4(3) of Decision ECB/2004/3, the ECB must refuse access to
documents drafted or received by the ECB for internal use as part of deliberations and preliminary
consultations within the ECB, or for exchanges of views between the ECB and NCBs, even after the decision
has been taken, unless there is an overriding public interest in disclosure.
The three identified documents are confidential documents drafted by the ECB for internal use as part of the
Executive Board deliberations which have led to the design of ECB’s current climate-related SRI strategy used
to invest in the ECB’s own funds.
Those documents were drafted for the purpose of opinion-forming and contain reflections, suggestions and
proposals. It is of vital importance that the ECB is able to convey pertinent and candid views in the manner
that is judged to be most effective for achieving the intended purpose, ultimately serving the public interest. If
documents reflecting internal deliberations, proposals or exchanges of views were to be disclosed, their
authors would take the risk of disclosure into account in the future, to the point where they could potentially
practise self-censorship and cease to put forward candid views or comprehensively describe possible
scenarios
9. The result would be that the ECB would no longer be able to benefit from an exchange of
uncensored opinions and internal advice, given free of any potential external constraints linked to the risk of
being misinterpreted or giving the wrong signal on a matter which from today’s perspective is still topical. For
these reasons, disclosing the identified documents would undermine the ability of the ECB’s staff to freely
exchange views and provide uncensored advice.
For these reasons, disclosing more information about these documents than what it is already made available
on the ECB website – even after the decision has been taken – would seriously undermine the ECB’s ability to
effectively handle its internal finances and investment framework (also in connection with point (ii), below).
8 See also footnotes 4 to 7.
9 See
MyTravel v Commission, Case T-403/05, ECLI:EU:T:2008:316, paragraph 52.
3
link to page 4
ECB-UNRESTRICTED
The exception to the right of access contained in Article 4(3) of Decision ECB/2004/3 may be waived if there is
an overriding public interest in disclosing the requested documents. In order for an overriding public interest in
disclosure to exist, this interest, first, has to be public (as opposed to the private interests of the applicant) and,
second, overriding, i.e. in this case it must outweigh the interest protected under Article 4(3). For this purpose,
specific and detailed reasons based on the nature of the documents must be provided assuring the protection
of the invoked public interest
10. However, we could not identify in your application any elaborated arguments
establishing the existence of an overriding public interest in the disclosure of the documents at issue.
Consequently, the prevailing interest in this case lies in protecting the confidentiality of deliberations and
consultations within the ECB and therefore access to the identified documents must be refused.
(ii) The protection of the public interest as regards the internal finances of the ECB or of the NCBs
Pursuant to the third indent of Article 4(1)(a) of Decision ECB/2004/3, the ECB must refuse access to
documents where disclosure would undermine the protection of internal finances of the ECB.
These three documents contain confidential information regarding the ECB’s investment framework, including
potential changes to the ECB´s own funds portfolio, planned investments and amounts of holdings. Releasing
this detailed information might harm the independence that the ECB needs in order to implement its
investment framework and manage financial risks to cover operating expenses. In fact, the disclosure of
detailed information might also expose the ECB to external pressure aimed at steering or orienting its
decisions in relation to the risk management of its portfolios, and the implementation of strategies designed for
the ECB’s own funds portfolio.
Therefore, disclosure of these preparatory ECB documents would specifically and effectively undermine the
public interest as regards the protection of internal finances of the ECB, pursuant to the third indent of Article
4(1)(a) of Decision ECB/2004/3, in particular with respect to the ECB’s ability to effectively handle its internal
finances and investment framework. In the light of the above, access to the identified documents cannot be
granted.
Partial access to the documentation
The ECB has considered whether partial access could be granted to the documents, but, because of the
amount of confidential information, it would not be possible to provide the documents with meaningful content
after the redaction of the protected information. Consequently, the ECB has come to the conclusion that the
documents are covered in their entirety by the invoked exception of Article 4(3) first sub-paragraph
(“confidentiality of documents drafted or received by the ECB for internal use as part of deliberations and
preliminary consultations within the ECB”), and the third indent of Article 4(1)(a) (“the internal finances of the
ECB or of the NCBs”) of Decision ECB/2004/3.
10 See
Association Justice & Environment v European Commission, T-727/15, paragraph 56.
4
ECB-UNRESTRICTED
Final remarks
For the sake of good order, we would like to inform you that, as regards the identified documents Article 7(2)
of Decision ECB/2004/3 provides that “
in 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”.
Yours sincerely,
[signed] [signed]
Petra Senkovic Roman Schremser
Director General Secretariat Chief Compliance & Governance Officer
5