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ECB-UNRESTRICTED
DIRECTORATE GENERAL SECRETARIAT

Mr Nik Völker
MiningWatch Portugal
xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxx.xxx

21 December 2023
Reference number: LS/PS/2023/54

Request for public access to ECB documents on the not materialised sale of the
Portuguese bank Efisa S.A. to Pivot S.G.P.S S.A

Dear Mr Völker,
On 30 October 2023 the European Central Bank (ECB) received your application for public
access to ECB documents on the not materialised sale of the Portuguese bank Efisa S.A. to
Pivot S.G.P.S.
On 27 November 2023, due to an exceptional y high workload resulting from a large number of
concurrent requests, the ECB extended the time limit for its reply by an additional 20 working
days in accordance with Article 7(3) of Decision ECB/2004/3.1
In your request you make reference to Regulation 1049/2001, please be informed that this
framework is only applicable to the European Commission, the Council of the European Union
and the European Parliament. Public access to ECB documents is governed by a dedicated
framework laid down in Decision ECB/2004/3 mentioned above.
Procedural clarifications
As a preliminary remark, for all useful purposes, please note that in accordance with the Capital
Requirements Directive (CRD), and in particular Article 22(1) thereof, Member States shall require
any proposed acquirers of a qualifying holding to notify the relevant competent authorities for the
credit institution in which they are seeking to acquire or increase a qualifying holding in writing
in advance of the acquisition.
According to Article 4(1)(c) of the SSM Regulation, the ECB shall be exclusively competent to
carry out, for prudential purposes, the assessment of notifications of the acquisition and disposal
of qualifying holdings in credit institutions. In particular, approving the proposed acquisitions of

1   Decision ECB/2004/3 of the European Central Bank of 4 March 2004 on public access to European Central Bank
documents (OJ L 80, 18.3.2004, p. 42).
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qualifying holdings is one of what are known as “common procedures”2 and the ECB and the
national competent authorities (NCAs) are involved in different stages of these procedures.3
Identification of the requested documents
Having assessed the matter thoroughly, the ECB has identified in total 81 ECB supervisory
documents of relevance for your request. They are categorised as follows:
(1)  Entire/excerpts of ECB-internal documents and communication with Banco de
Portugal in the context of the supervisory assessment of the proposed transaction;
(2)  Documents authored by Banco de Portugal and addressed to Pivot S.G.P.S; and
(3)  Documents authored and sent by Pivot S.G.P.S S.A to the NCA.
The Annex to this letter describes the identified ECB documents per category and the exceptions
used in accordance with Decision ECB/2004/3.
Assessment of the requested documents for disclosure
Following a thorough assessment of the ECB documents identified in accordance with Decision
ECB/2004/3, we regret to inform you that access to them cannot be granted, neither in full nor
in part, since disclosure would undermine the interests protected under Article 4(1)(c) of Decision
ECB/2004/3 (“the confidentiality of information that is protected as such under Union law”), in
conjunction with Article 27 of the SSM Regulation4 and Article 53 of the Capital Requirements
Directive (CRD )5; (ii) Article 4(3) (“exchanges of views between the ECB and national competent
authorities and national central banks”) and (i i) first indent of Article 4(2) (“commercial interest”)
of Decision ECB/2004/3.
The explanations provided below clarify the ECB’s decision not to disclose the documents in
question category by category.
1.  Confidentiality of information under Union law - Article 4(1)(c) Decision ECB/2004/3
Pursuant to Article 4(1)(c) of Decision ECB/2004/3, the ECB must refuse access to documents
where disclosure would undermine the protection of the confidentiality of information that is
protected as such under Union law. Such provision is linked to the professional secrecy

2   See Article 2(3) of the SSM Regulation. For detailed information on the common procedures, see Articles 14 and 15
of the SSM Regulation, as well as Part V of Regulation (EU) No 468/2014 of the European Central Bank of 15 April
2014 establishing the framework for cooperation within the Single Supervisory Mechanism between the European
Central Bank and national competent authorities and with national designated authorities (SSM Framework
Regulation) (ECB/2014/17), (OJ L 141, 14.5.201 4, p. 1).
3    Additional information on ECB supervisory practices for qualifying holding assessments can be found in ECB ‘Guide
to qualifying holding procedures’, available at:
https:/ www.bankingsupervision.europa.eu/ecb/pub/pdf/ssm.supervisory_guides230523_qualifyingholdingprocedure.en.pdf
4     Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank
concerning policies relating to the prudential supervision of credit institutions (OJ L 287, 29.10.2013, p. 63).
5   Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of
credit institutions and the prudential supervision of credit institutions, amending Directive 2002/87/EC and repealing
Directives 2006/48/EC and 2006/49/EC (OJ L 176, 27.6.2013, p. 338).
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requirements set out in Article 27 of the SSM Regulation6 and Article 53 et seq. of the Capital
Requirements Directive (CRD) establishing a general rule prohibiting disclosure of confidential
supervisory information.
These provisions, read in conjunction with the principles enshrined in the judgement issued by
the Court of Justice of the European Union in the Baumeister case7, lead to the application of this
prohibition to any document drawn up or held within the Single Supervisory Mechanism (SSM)
which (i)  is not public; and (i ) the disclosure of which is likely to have an adverse effect on the
interests of the natural or legal person who provided that information or the interests of third parties,
or on the proper functioning of the system of banking supervision in the European Union.
The documents contain specific confidential information on the proposed acquirer of a qualifying
holding such as, reputation information, information on the intended acquisition, information
regarding the financing of the intended acquisition as well as information that goes beyond what
has been made public concerning supervisory methodologies, assessments, findings, strategies
and practices of competent authorities (including the ECB).
Such Information constitutes confidential supervisory information within the meaning of Article
53 of the CRD, the confidentiality of which is “protected as such under Union law”, under Article
4(1)(c) of Decision ECB/2004/3.
In this regard, the ECB confirms that: (i) the information contained in the identified documents
(categories 1 to 3) is not public; and (i ) its disclosure would not only adversely affect the
interests of the natural or legal person who provided that information or the interests of third
parties, and/or the interests of the credit institutions concerned, but would also adversely affect
the public interest in the smooth functioning of the system of prudential supervision as a whole.8
The identified documents are therefore covered by the professional secrecy obligation.
On this last point, the ECB notes that professional secrecy requirements have been established
to protect not only individual credit institutions and, as in this case, potential qualifying shareholders,
but also the proper functioning of the supervisory system as a whole. In this respect, on general
terms, disclosure of information relating to a supervised entity’s compliance with upcoming
supervisory requirements with any related supervisory assessment and findings is likely to
adversely affect the supervised entities’ trust that their information wil  not be disclosed by the
supervisor. On the one hand, reliance on non-disclosure of this type of information is essential
for guaranteeing the effective exchange of information between supervised entities and the
supervisory authority, which, in turn, is crucial for effective supervision. On the other hand,
disclosure of information underlying the supervisory assessment and the findings related to the

6   Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank
concerning policies relating to the prudential supervision of credit institutions (OJ L 287, 29.10.2013, p. 63).
7   See Bundesanstalt für Finanzdienstleistungsaufsicht v Ewald Baumeister, C-15/16, ECLI:EU:C:2018:464,
paragraph 35.
8   See Bundesanstalt für Finanzdienstleistungsaufsicht v Ewald Baumeister, C-15/16, ECLI:EU:C:2018:464, paragraph
33; Annett Altmann and Others v Bundesanstalt für Finanzdienstleistungsaufsicht, C-140/13,
ECLI:EU:C:2014:2362, paragraphs 31 to 33; and Gemeente Hil egom v Cornelis Hil enius, C-110/84,
ECLI:EU:C:1985:495, paragraph 27.
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concerned entity could reveal and, therefore, undermine supervisory methodologies and
strategies developed and deployed by competent authorities.
This confidentiality regime continues to apply in the case of banks that have been resolved or
liquidated.
It is clear that granting public access to any additional information about the content of the
documents identified as being relevant to your request (over and above the descriptions
provided in the Annex) could lead to unwarranted speculation among market participants
regarding the parties of the intended transaction.
Accordingly, providing more specific reasons justifying the refusal of public access to each
individual document (over and above the descriptions provided also in the Annex) would
jeopardise their confidential nature, and the exception under Article 4(1)(c) of Decision
ECB/2004/3 would be deprived of its very purpose.9
Consequently, for the reasons stated above, the ECB considers that disclosure of the
confidential supervisory information contained in the identified documents across
categories (1) to (3) would specifical y and effectively undermine the protection of the
confidentiality of information pursuant to Article 4(1)(c) of Decision ECB/2004/3.

2.  Exchanges of views between the ECB and NCAs - Article 4(3) Decision ECB/2004/3
Pursuant to Article 4(3) of Decision ECB/2004/3, the ECB must refuse access to documents
reflecting exchanges of views between the ECB and other relevant authorities and bodies, even
after the decision has been taken, unless there is an overriding public interest in disclosure.
The documents pertaining to category (1) contain exchanges between the NCAs and the ECB
regarding common procedures. The disclosure of the documentation exchanged between the
ECB and NCAs may undermine NCAs’ wil ingness to communicate their assessment in a frank
and uncensored manner to the ECB. If documents reflecting confidential exchanges of views
were to be disclosed, the ECB would no longer be able to benefit from the free and candid
exchange of opinions with NCAs.
Disclosing those views – even after the adoption of a decision – would seriously undermine the
space for the opinion-building process in formulating and adopting similar decisions in the
future. In this respect, it is vital y important that ECB staff are able to convey pertinent and
candid views in the manner that is judged to be most effective for serving the public interest. If
documents reflecting internal deliberations 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 practice self-censorship and cease to put forward candid views or comprehensively

9   See Sison v Council, T-110/03, T-150/03 and T-405/03, ECLI:EU:T:2005:143, paragraph 84. See also Aeris Invest
Sàrl v European Central Bank, T-827/17, ECLI:EU:T:2021:660, paragraph 264 (under appeal).
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describe possible scenarios.10 As a result, the ECB’s effectiveness in carrying out its oversight
function could be seriously undermined.
Consequently, the prevailing interest in this case lies in protecting the confidentiality of the
internal consultations concerned.

In view of the foregoing, the ECB considers that disclosure of the confidential
supervisory information contained in documents pertaining to category (1) would
specifical y and effectively undermine the protection of the public interest as regards the
confidentiality of internal consultations within the ECB pursuant to Article 4(3) of
Decision ECB/2004/3.

3.  Commercial interests - first indent of Article 4(2) Decision ECB/2004/3
Pursuant to the first indent of Article 4(2) of Decision ECB/2004/3, the ECB must refuse access
to documents where disclosure would undermine the protection of the commercial interests of a
natural or legal person, unless there is an overriding public interest in disclosure. The documents
pertaining to category (3) contain commercially sensitive information of the different entities
involved in the assessment of the acquisition of qualifying holdings and, in particular, information
on their business plans, assessments of shareholders, governance structures, outsourcing
and/or plans to raise capital. Should the information included in these documents become
available in the public domain, this could negatively affect the standing, commercial interests
and position of Pivot S.G.P.S S.A.

In view of the foregoing, the ECB considers that disclosure of the confidential supervisory
information contained in the identified documents pertaining to category (3) would
specifical y and effectively undermine the protection of the public interest as regards the
commercial interests of a natural or legal person pursuant to the first indent of Article
4(2) of Decision ECB/2004/3.

4.  Overriding public interest in disclosure
The exception to the right of access contained in Article 4(2) or 4(3) of Decision ECB/2004/3
may be waived if there is an overriding public interest in disclosing the requested documents.
Such an interest must (i) be public and (i ) outweigh the harm caused by disclosure. In that
case, specific and detailed reasoning based on the nature of the relevant documents must be
provided in order to explain why disclosure is necessary to ensure the protection of the public
interest that is being invoked.11

10   See MyTravel Group plc v Commission of the European Communities, Case T-403/05, ECLI:EU:T:2008:316,
paragraph 52.
11   See Case T-727/15, Association Justice & Environment v European Commission, paragraph 56.
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However, we could not identify in your application any arguments establishing the existence of
an overriding public interest in the disclosure of the documents at issue.
Means of Redress
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                        Margarita-Louiza Karydi
Director General Secretariat               Head of the Compliance and Governance Division

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ECBV

ECB-UNRESTRICTED
ANNEX
  Category
Description
No. of
Disclosure  Justification
Documents
1  ECB-internal documents  (or  The  ECB internal documents and  5
No
This information is confidential and access to the identified
excertps thereof) and  excerpts  thereof, such as a
ECB documents cannot be granted since their contents are
communication  with  Banco  confidential ECB Memo and its
protected under Article 4(1)(c) of Decision ECB/2004/3 (“the
de Portugal in the context of  annex, contain
confidential
confidentiality of information that is protected as such under
the supervisory assessment  information on Efisa’s assets, capital
Union law”), in conjunction with Article 27 of the SSM
of the proposed transaction  ratios, sale process, capital
Regulation and Article 53 of the Capital Requirements
(2016 & 2017)
requirements.
Directive (CRD IV) and the second sub-paragraph of Article
The direct exchanges between the
4(3) Decision ECB/2004/3  (“Exchanges of views between
ECB and Banco de Portugal include
the ECB and national competent authorities”).
information on legal deadlines for the
Public access to such information is likely to have an adverse
process, questions on the process
effect on supervised entities’ trust that the NCAs and the ECB
and the notification on the
wil  treat information pertaining to credit institutions in a
withdrawal of the proposed
confidential manner, which is vital in order to ensure that
acquisition.
supervised entities are prepared to exchange supervisory
information with the relevant supervisory authority. In
addition, the unobstructed exchange of information is a
cornerstone of common procedures and requires that NCAs
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trust that the ECB wil  treat the information provided in a
manner that is strictly in line with professional secrecy.
Furthermore, disclosure of this confidential information to the
public is likely to adversely affect the proper functioning of the
system of supervision by revealing supervisory information
exchanged between the bank and its supervisor  and the
exchanges between the NCAs and the ECB regarding
common procedures. Accordingly, providing more specific
reasons justifying the refusal of public access to the
documents would jeopardise their confidential nature, and the
exception under Article 4(1)(c) of Decision ECB/2004/3 would
be deprived of its very purpose.
2  Documents authored by BdP  Banco de Portugal’s letters to Pivot  7
No
This information is confidential and access to the identified
and addressed to Pivot S.G.P.S requesting supervisory
ECB documents cannot be granted since their contents are
S.G.P.S  (2016 & 2017)
information  on  the financial
protected under Article 4(1)(c) of Decision ECB/2004/3 (“the
soundness of the acquirers and the
confidentiality of information that is protected as such under
ability to support the target in the
Union law”),  in conjunction with Article 27 of the SSM
foreseeable future   i.e concrete
Regulation and Article 53 of the Capital Requirements
information about the entities
Directive (CRD IV).
involved,  guarantees provided,
Public access to these documents is likely to have an adverse
clarifications on financial statements
effect on the proposed acquirer’s trust that the NCAs and the
andfinancial projections,  strategic
ECB wil  treat information pertaining to them in a confidential
planing,
internal governance
manner, which is vital in order to ensure that the  potential
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structure,  policies on AML  and
qualifying shareholders  are  prepared to exchange
deposits, purchase price, forecasts,
supervisory information with the relevant supervisory
etc. also addressing comments from
authority. In addition, the unobstructed exchange of
Pivot S.G.P.S.
information is a cornerstone of common procedures and
requires that NCAs trust that the ECB wil  treat the information
provided in a manner that is strictly in line with professional
secrecy.
As mentioned in the reply, professional secrecy requirements
have been established to protect not only individual credit
institutions,  and, as in this case, potential qualifying
shareholders,  but also the proper functioning of the
supervisory system as a whole, which would be likely
adversely affected along with the ECB’s  effectiveness in
carrying out its tasks in relation to common procedures by
revealing supervisory information requested to Pivot S.G.P.S
S.A..
Moreover, public access to some of the identified documents
could reveal information going beyond what has been made
public concerning supervisory methodologies, assessments,
findings, strategies and practices of competent authorities.
Public access could therefore (i) risk depriving the competent
authorities and the ECB of their ability to continue applying
supervisory methodology and  strategy and (i ) adversely
affect the functioning of the system for prudential supervision
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by undermining the effectiveness of the competent authorities
and the ECB’s use of such strategy. Public access to the
identified documents would,  therefore,  seriously undermine
the ECB's effectiveness in carrying out its common
procedures.
Accordingly, providing more specific reasons justifying the
refusal of public access to the documents would jeopardise
their confidential nature, and the exception under Article
4(1)(c) of Decision ECB/2004/3 would be deprived of its very
purpose.
3  Documents authored and Direct exchanges between Pivot  69
No
This information is confidential and access to the identified
sent by Pivot S.G.P.S S.A to  S.G.P.S S.A and Banco de Portugal
ECB documents cannot be granted since their contents are
the NCA (2015– 2017)
on  the acquisition of Efisa S.A.
protected under Article 4(1)(c) of Decision ECB/2004/3 (“the
qualifying holdings.
confidentiality of information that is protected as such under
These documents include
Union law”), in conjunction with Article 27 of the SSM
supervisory confidential information
Regulation and Article 53 of the Capital Requirements
on  Pivot  S.G.P.S S.A, such as the
Directive (CRD IV) and  under the first indent of Article 4(2)
withdrawal  letter, financing,
of Decision ECB/2004/3 (“commercial interests of a natural
shareholder information, business
or legal person”).
invetment plan, income streams,
The prudential assessment of acquisitions and increases of
targets, financial statements,
qualifying holdings in credit institutions is an essential tool to
projections, AML, notification and
ensure effective supervision of the European financial
system. Proposed acquirers are legally obliged to prepare
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replies to BdP on the information
their notifications accurately and completely and share
requested (please see category 2).
information openly and swiftly to support supervisors in
reaching an informed judgement. Public access to the
exchanges pertaining to this category is likely to have an
adverse effect on the proposed acquirer’s trust that the NCAs
and the ECB wil  treat information pertaining to them  in a
confidential manner, which is vital in order to ensure that the
potential qualifying shareholders  are  prepared to exchange
supervisory information with the relevant supervisory
authority.
In addition, the unobstructed exchange of information is a
cornerstone of common procedures and requires that NCAs
trust that the ECB wil  treat the information provided in a
manner that is strictly in line with professional secrecy. As
mentioned in the reply, professional secrecy requirements
have been established to protect also the proper functioning
of the supervisory system as a whole, which would be likely
adversely affected along with ECB’s effectiveness in carrying
out its common procedures,  by  revealing supervisory
information exchanged between Pivot S.G.P.S S.A to the
NCA.
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Public access to the identified documents would therefore
seriously undermine the ECB's effectiveness in carrying out
its common procedures.
Accordingly, providing more specific reasons justifying the
refusal of public access to the documents would jeopardise
their confidential nature, and the exception under Article
4(1)(c) of Decision ECB/2004/3 would be deprived of its very
purpose.

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