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Decision on how the European Commission dealt with a request for public access to documents related to its proposal for applying the 'rule of law procedure' in Hungary (case 646/2024/PVV)
Decision
Case 646/2024/PVV - Opened on Thursday | 18 April 2024 - Recommendation on Thursday | 13 February 2025 - Decision on Wednesday | 29 October 2025 - Institution concerned European Commission ( Solution achieved ) - Country Hungary
Complaint submitted
03/04/2024Analysis of the complaint
04/04/2024Inquiry ongoing
18/04/2024Preliminary outcome
13/02/2025Inquiry outcome
29/10/2025
The case concerned a request for public access to documents related to the European Commission’s proposal for applying the 'rule of law procedure' in Hungary (proposal for a Council Decision based on the Conditionality Regulation). The Commission identified fourteen documents as falling within the scope of the request and disclosed all but parts of three documents. In withholding access to these parts, it invoked two exceptions under the EU legislation on public access to documents, arguing that disclosure could undermine ongoing court proceedings and its decision-making process.
The Ombudsman opened an inquiry and sought to inspect the documents in question. Her inquiry team met twice with Commission representatives to discuss the case. Based on her inquiry, the Ombudsman was not convinced by the application of the two exceptions to public access as invoked by the Commission. The Ombudsman therefore made a proposal for a solution, asking the Commission to reconsider its position on the request, with a view to giving increased public access.
The Commission accepted the Ombudsman’s proposal for a solution and gave full access to the requested documents. The Ombudsman closed the inquiry, welcoming the Commission’s positive response.
Background to the complaint
1. The rule of law is one of the founding values of the EU.[1] The European Commission has several mechanisms at its disposal to ensure respect for the rule of law in the EU Member States. In 2021, the Conditionality Regulation[2] or ‘conditionality regime’ was included among these mechanisms.[3] The conditionality regime allows the Commission to propose to the Council of the EU the adoption of measures intended to protect the EU’s financial interests against breaches of the rule of law principles.
2. In December 2022, the Council, acting upon a proposal of the Commission[4], adopted for the first time an Implementing Decision[5] under the Conditionality Regulation. Concretely, the Council decided to suspend about €6.3 billion in EU funds attributed to Hungary for the protection of the EU budget in light of breaches of the principles of the rule of law regarding public procurement and anti-corruption investigations and prosecution.[6] In December 2023 and 2024, the Commission decided to maintain these measures.[7]
3. One of the measures[8] taken to protect the EU’s financial interests is the suspension of EU funding for Hungarian public interest trusts or any entity maintained by such a public interest trust. The Commission and the Council are concerned about the lack of transparency of the management of EU funds by these trusts and about the fact that public procurement and conflict of interest rules do not apply to them.[9]
4. In March 2023, six universities/higher education institutions maintained by Hungarian public interest trusts brought an action for annulment[10] to the Court of Justice of the EU (CJEU) against the relevant provision of the Council Implementing Decision. Some of these institutions also contested[11] a related joint statement from the relevant Commissioners and Commission communications on the same topic. More recently, in February 2025, Hungary turned to the CJEU to contest the Commission’s Decision of December 2024 to maintain the suspension of EU funding for public interest trusts.[12]
5. Against this background, in December 2023, the complainant submitted a request for public access to documents[13] referred to in the explanatory memorandum or the main text of the Commission’s proposal under the Conditionality Regulation. More specifically, the complainant asked the Commission for public access to the Commission’s ‘Request for information’, ‘Written notification’ and ‘Intention letter’ as sent to Hungary. In addition, the complainant’s access request covered a study on Hungarian public procurement data, “all documents that contain information about ‘the examination of certain tender data’ and ‘reports by media and stakeholders’”, as referred to in the proposal, and documents related to relevant audits and financial recommendations from the Commission.
6. Not having received a reply from the Commission, in February 2024, the complainant asked the Commission to review this implicit refusal of their request (by making a ‘confirmatory application’).
7. In March 2024, the Commission sent the complainant an initial reply to their access request. The Commission granted partial access to the ‘Request for information’, the ‘Written notification’ and the ‘Intention letter’. In doing so, it invoked exceptions under the EU legislation on public access to documents (Regulation 1049/2001), arguing that full disclosure would undermine the protection of court proceedings[14] and its decision-making process[15].
8. In addition, the Commission gave full access to the study and six documents containing information about the examination of certain procurement data. The Commission also provided the complainant with several hyperlinks to publicly available reports by media and stakeholders. As for the documents related to audits and financial recommendations, the Commission indicated that a separate reply would follow.
9. In April 2024, the Commission closed the complainant’s confirmatory application and informed the complainant that they may make a new one if they wished to challenge the substance of the Commission’s reply of March 2024.
10. Dissatisfied with the Commission’s reply to their access request and its decision to close their confirmatory application, the complainant turned to the Ombudsman in April 2024.
The inquiry
11. The Ombudsman opened an inquiry into the Commission’s refusal to grant full access to the requested documents under Regulation 1049/2001.
12. During the inquiry, the Ombudsman inquiry team inspected the requested documents and reviewed the additional views[16] that the Commission provided. The Ombudsman inquiry team also met with representatives of the Commission on two occasions to obtain further clarifications on the Commission’s refusal to grant full access to the requested documents and its decision to close the complainant’s confirmatory application.
13. The Ombudsman then shared with the complainant the Commission’s additional views and the report on the meetings[17]. The complainant provided comments on both documents.
The Ombudsman's proposal for a solution and the Commission’s reply
14. Based on her inquiry, the Ombudsman was not convinced by the application of the exceptions to public access as invoked by the Commission to justify its redactions in the requested documents.
15. Firstly, the Ombudsman stated that it was not readily clear how the disclosure of all the information redacted on the basis of the exception for the protection of court proceedings would have undermined the principle of equality of arms and the integrity of the proceedings brought by universities/higher education institutions maintained by Hungarian public interest trusts. She considered that a relevant link exists between the requested documents and those proceedings. However, the Commission did not demonstrate how full disclosure of the requested documents would afford the applicants in these court proceedings privileged access to internal information closely connected to the legal aspects of the proceedings[18].
16. More specifically, the review of the documents by the Ombudsman inquiry team revealed that some of the redacted information is generic and/or factual in nature and that the redacted passages do not contain divergent views related to a legal issue contested before the Court. Furthermore, the fact that the requested documents were exchanged with the Hungarian authorities, via official channels and in accordance with the Conditionality Regulation, implied that they were not “purely internal document[s]”. [19] Finally, the Ombudsman noted that shortly after the Commission responded to the complainant’s access request, it was no longer a defendant in these court proceedings.
17. Secondly, the Ombudsman was not persuaded by the Commission’s arguments to justify its reliance on the exception for the protection of an ongoing decision-making process. The Ombudsman considered that the decision-making process at hand should be regarded as closed because the requested documents relate to the Commission’s proposal for a Council Implementing Decision under the Conditionality Regulation, which was adopted one year before the complainant’s access request. The fact that the Commission must continue its monitoring of the measures in place and that it could potentially reopen the procedure for issues not yet covered, does not mean that the decision-making process in relation to its proposal is ongoing[20].
18. In addition, the Ombudsman found that the Commission’s specific arguments to support the potential risk to its decision-making process were not sufficiently convincing to conclude that further disclosure would amount to such external pressure that it would undermine the Commission’s ability to apply the conditionality regime or that it would interfere with the Commission’s possibilities to justify how it uses its tools to protect the EU’s financial interests and the rule of law. She concluded that the exception cannot be interpreted in such a broad way as to cover all elements that would show the Commission’s ‘strategy’ in dealing with the application of the Conditionality Regulation.
19. As regards the possible existence of an overriding public interest in disclosure, the Ombudsman noted that, given the delay in adopting the Commission’s reply, the complainant was not aware that the Commission would rely on exceptions related to the protection of court proceedings and a decision-making process to justify its refusal to disclose which can only be applied in circumstances where there is no overriding public interest in disclosure. As a result, the complainant did not have the opportunity in their confirmatory application to raise arguments as to the existence of an overriding public interest in disclosure.
20. In light of the above, the Ombudsman proposed as a solution[21] that the Commission review its application of the exceptions with a view to giving wider access to the documents concerned, and that it provide a detailed justification for any remaining redactions. Furthermore, she proposed that the Commission engage with the complainant’s arguments regarding the existence of an overriding public interest in disclosure, which the complainant submitted in their complaint to the Ombudsman.
21. In its reply to the Ombudsman’s proposal for a solution[22], the Commission clarified that it is not required to carry out a yearly reassessment of the measures imposed under the Conditionality Regulation, contrary to what was mentioned in the Ombudsman’s proposal for a solution. In addition, it informed the Ombudsman that the Commission applied to join the relevant court proceedings as an intervener and that it thus continues to support the Council in the ongoing litigation. Furthermore, the Commission noted that the situation has evolved and that the Commission adopted a new Decision[23] under the Conditionality Regulation in December 2024.
22. The Commission, however, considered the observations contained in the Ombudsman’s proposal for a solution, as well as the passage of time and the exchanges held with the Ombudsman inquiry team. Although the Commission applied to intervene in the relevant court proceedings, it acknowledged that “because of the publication of its decision of 16 December 2024, the partial redaction done in reply to the complainant’s request is no longer relevant.” Therefore, the Commission carried out a new assessment of its position on the public access request and decided to give full access to the documents at issue.
23. The complainant was satisfied with this outcome and did not provide further comments.
The Ombudsman's assessment after the proposal for a solution
24. The Ombudsman welcomes the Commission’s positive response to her proposal for a solution and the full access granted, which she considers has resolved the complaint. She also commends the Commission’s constructive engagement throughout this inquiry.
25. In addition to the access granted to the requested documents, the complainant took issue with the fact that the Commission treated its reply of March 2024 as an ‘initial reply’, even though they had submitted a valid confirmatory application.[24] They also criticised the fact that the Commission’s reply made no mention of the possibility of turning to the CJEU or the Ombudsman to contest its decision.
26. During the meeting with the Ombudsman inquiry team, the Commission representatives stated that the Commission provided the complainant with an initial reply after their confirmatory application and that it therefore decided to close the confirmatory application. The Commission representatives also said that the Commission had invited the complainant to submit a new confirmatory application if they wished to do so, thereby preserving the two-stage process provided under Regulation 1049/2001 and allowing for the possibility for the complainant to present their observations on that reply.
27. Regulation 1049/2001 states that, where an institution fails to take an initial decision within the prescribed time limits, the requester may make a confirmatory application. Once the time limits for adopting a confirmatory decision have expired, the requester can then turn to the CJEU or to the Ombudsman. Currently, the Commission does not inform requesters of the possibility to turn to the CJEU or the Ombudsman in such cases. It merely informs requesters that they may make a new confirmatory application. The Ombudsman reminds the Commission of her previous finding[25] that this practice is at odds with Regulation 1049/2001.
28. The complainant also questioned whether the Commission had identified all documents containing information about the ‘examination of certain tender data’. They said that they were provided with a list of relevant tenders only while it appeared from the Commission’s proposal that it had also conducted an examination of those tenders. In addition, they said that one of the footnotes in the ‘Intention letter’ mentioned an annex to that letter.
29. In its additional views, the Commission confirmed that there were no additional documents falling within the scope of the complainant’s request beyond what the Commission already identified in its reply.
30. In their comments to the Ombudsman, the complainant no longer contested this position. Therefore, the Ombudsman considers this issue to be resolved.
Conclusion
Based on the inquiry, the Ombudsman closes this case with the following conclusion:
The European Commission has accepted the Ombudsman’s proposal for a solution by granting the complainant full public access to the requested documents.
The complainant and the Commission will be informed of this decision.
Teresa Anjinho
European Ombudsman
Strasbourg, 29/10/2025
[1] Article 2 of the Treaty on European Union.
[2] Regulation 2020/2092 of 16 December 2020 on a general regime of conditionality for the protection of the Union budget, available at: https://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=uriserv:OJ.LI.2020.433.01.0001.01.ENG&toc=OJ:L:2020:433I:TOC.
[3] For more information, see: https://commission.europa.eu/strategy-and-policy/eu-budget/protection-eu-budget/rule-law- conditionality-regulation_en.
[4] Proposal of 18 September 2022 for a Council Implementing Decision on measures for the protection of the Union budget against breaches of the principles of the rule of law in Hungary, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:52022PC0485.
[5] Council Implementing Decision 2022/2506 of 15 December 2022 on measures for the protection of the Union budget against breaches of the principles of the rule of law in Hungary, available at: https://eur-lex.europa.eu/eli/dec_impl/2022/2506/oj/eng.
[6] For more information, see: https://www.consilium.europa.eu/en/press/press-releases/2022/12/12/rule-of-law-conditionality-mechanism/.
[7] Commission Decision of 13.12.2023 on the reassessment, on the Commission’s initiative, of the fulfilment of the conditions under Article 4 of Regulation (EU, Euratom) 2020/2092 following Council Implementing Decision (EU) 2022/2506 of 15 December 2022 regarding Hungary, available at: https://commission.europa.eu/system/files/2023-12/C_2023_8999_1_EN_ACT.pdf; Commission Decision of 16.12.2024 pursuant to Article 7(2) of Regulation 2020/2092 of 16 December 2020 on a general regime of conditionality for the protection of the Union budget, concerning a written notification from Hungary with regard to Article 2(2) of Council Implementing Decision (EU) 2022/2506 of 15 December 2022, available at: https://commission.europa.eu/document/8003e1ad-8e79-4238-bf76-af1fcd2b5efe_en. As long as Hungary has not addressed all rule of law concerns under the conditionality regime, it cannot claim disbursements under the Recovery and Resilience Facility either.
[8] Article 2(2) of Council Implementing Decision 2022/2506.
[9] Recital (11) to Council Implementing Decision 2022/2506.
[10] Case T-115/23, application available at: https://curia.europa.eu/juris/document/document.jsf?docid=273772&mode=lst&pageIndex=1&dir=&occ=first&part=1&tex t=&doclang=EN&cid=13176582; Case T-132/23, application available at:
xt=&doclang=EN&cid=13176615; Case T-133/23, application available at:
https://curia.europa.eu/juris/document/document.jsf;jsessionid=2A7D5D1EB8 D80B6CC4A89430F3E259FA?text=&doci d=275159&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=268780 ; Case T‑138/23, application available at:
https://curia.europa.eu/juris/document/document.jsf?docid=274830&mode=req&pageIndex=1&dir=&occ=first&part=1&te xt=&doclang=EN&cid=13176662; Case T‑139/23, application available at:
https://curia.europa.eu/juris/document/document.jsf?text=&docid=275197&pageIndex=0&doclang=en&mode=req&d ir=& occ=first&part=1&cid=13461926; Case T‑140/23, application available at:
https://curia.europa.eu/juris/document/document.jsf?docid=275179&mode=req&pageIndex=1&dir=&occ=first&part=1&te xt=&doclang=EN&cid=13176698.
[11] The applicants in cases T-132/23, T-133/23, T‑139/23 and T‑140/23.
[12] Case T-138/25, application available at: https://eur-lex.europa.eu/eli/C/2025/2101/oj/eng.
[13] Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents:
https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32001R1049.
[14] Article 4(2), second indent of Regulation 1049/2001.
[15] Article 4(3), first subparagraph of Regulation 1049/2001.
[16] Available at: https://www.ombudsman.europa.eu/doc/correspondence/199247.
[17] Available at: https://www.ombudsman.europa.eu/doc/inspection-report/199246.
[18] Judgment of 24 January 2024, Veneziana Energia Risorse Idriche Territorio Ambiente Servizi SpA (Veritas) v Commission, T-602/22, paragraph 58: https://curia.europa.eu/juris/liste.jsf?num=T-602/22&language=EN; Judgment of 6 February 2020, Compañía de Tranvías de la Coruña, SA v Commission, T‑485/18, paragraph 42: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62018TJ0485_RES.
[19] Judgment of 26 July 2023, Troy Chemical Company v Commission, T‑662/21, paragraph 65: https://curia.europa.eu/juris/document/document.jsf?text=&docid=275848&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=1269378.
[20] Judgment of 14 September 2022, Pollinis France v Commission, Joined Cases T-371/20 and T-554/20, paragraphs 55-60: https://curia.europa.eu/juris/document/document.jsf?mode=DOC&pageIndex=0&docid=265442&part=1&doclang=EN&text=&dir=&occ=first&cid=22239 as confirmed in the Judgment of 16 January 2025, Commission v Pollinis France, C-726/22 P: https://curia.europa.eu/juris/liste.jsf?language=en&td=ALL&num=C-726/22%20P.
[21] Available at: https://www.ombudsman.europa.eu/solution/212351.
[22] Available at: https://www.ombudsman.europa.eu/doc/correspondence/212352.
[23] Commission Decision of 16.12.2024 pursuant to Article 7(2) of Regulation 2020/2092 of 16 December 2020 on a general regime of conditionality for the protection of the Union budget, concerning a written notification from Hungary with regard to Article 2(2) of Council Implementing Decision (EU) 2022/2506 of 15 December 2022, available at: https://commission.europa.eu/document/8003e1ad-8e79-4238-bf76-af1fcd2b5efe_en.
[24] To support this argument, the complainant referred to the Ombudsman’s Strategic Inquiry OI/2/2022/OAM regarding the time taken by the European Commission to deal with requests for public access to documents, see: https://www.ombudsman.europa.eu/en/case/en/60766.
[25] Ombudsman’s Recommendation in Strategic Inquiry OI/2/2022/OAM, paragraphs 51-53, available at: https://www.ombudsman.europa.eu/en/recommendation/en/167661.