Dear Mr X,

You recently submitted a complaint to the European Ombudsman against the Council of the European Union. Your complaint concerns how the Council handled your request for public access to documents.

In November 2023, you made the following request for public access to documents:

“All documents in the Council’s possession that contain information about the hearings of Hungary in accordance with Article 7 (1) TEU - hearings held on 16 September 2019, 10 December 2019, 22 June 2021, 23 May 2022, 18 November 2022 and 30 May 2023 -, as well as all documents that contain information about the discussion on the state of play regarding respect for EU values in Hungary held on 15 November 2023 in the General Affairs Council.

In particular:

• all documents (minutes, transcriptions, recordings) on the basis of which the General Secretariat of the Council compiled its published records on the above-mentioned hearings
• all written submissions in connection with the Article 7(1) procedure against Hungary (by Hungary, other Member States, the commission or other entities)
• all documents that contain information about the discussion of the Article 7 (1) procedure against Hungary in the preparatory bodies of the Council.”

In its initial reply, the Council stated that, concerning the ‘Article 7 TEU hearings’ of Hungary, all documents that you have requested are public and available for download in the public register of Council documents. The Council provided you with the link to the register and explained the register’s search function. Concerning the General Affairs Council of 15 November 2023, the Council provided you with a link to a ‘background brief’ of the General Secretariat’s press office and with a link to its ‘Council live’ webpage where public sessions and press conferences could be followed. It said that it did not issue any additional documents.

Dissatisfied with this reply, you asked the Council to review its decision by making a ‘confirmatory application’. In particular, you argued that there must exist more detailed documents about the content of the ‘Article 7 TEU hearings’ in the form of minutes, transcripts, recording, written submissions or handwritten notes. You asked the Council to try to identify other documents based on which the General Secretariat compiled its report. Should the Council maintain that there are no documents, you asked it to explain the process of how the Council draws up its summary reports without the help of any pre-existing documentation.

Concerning documents related to the General Affairs Council of 15 November 2023, you considered that it was reasonable to assume that there must have been some written correspondence between the Council and the Commission paving the way for the discussions. You also contended that it was likely that the delegations had received some information about the Commission’s oral update, as it would be quite uncommon for ministers to engage in discussion without prior knowledge of the envisaged topics. Should there be no additional documents, you asked the Council to explain what kind of preparation preceded the ‘state of play’ discussion and how it is possible that there is no documentation.

In January 2024, the Council replied. It confirmed that it does not hold copies of minutes, transcripts, recordings or any other similar documents that you requested. It maintained that all documents in its possession that fall within the scope of your request are public and available for download in its public register.

Dissatisfied with this outcome, you turned to the Ombudsman. Your complaint concerns the ‘Article 7 TEU hearings’ of Hungary only.

After careful analysis of all the information submitted to our Office, I regret to inform you that there are insufficient grounds to open an inquiry into your complaint.[1]

According to settled EU case-law, if the institution concerned states that it does not hold the requested documents, there is a legal presumption that this statement is true and accurate.[2] While this presumption can be rebutted with relevant and consistent evidence that the requested documents exist and are held by the institution concerned, it is for the applicant to provide such evidence.[3] This evidence must go beyond a mere belief or suspicion that the documents should be held by the institution. Thus, an applicant’s assertion that they find it difficult to believe that the institution does not hold the requested documents is not sufficient to rebut this legal presumption.[4] Neither is the assertion that the alleged lack of documents runs counter to good administrative practice.[5] This presumption applies by analogy where an institution claims that it is not in possession of the requested documents.[6]

Concerning the ‘Article 7 TEU hearings’, you argue that it transpires from the published reports that more detailed documents, such as minutes, transcripts, recordings, written submissions or handwritten notes, must exist. You consider that it is difficult to believe that the General Secretariat compiled the formal report without any pre-existing documents, as they contain details such as the precise dates of legislative reforms or Court rulings. Furthermore, the hearings lasted between 2 and 2.5 hours and there were interventions from several Member States, the Council Presidency and the Commission. You contended that it would not be in line with the principles of good administration if the Council based the only public documents concerning the ‘Article 7 TEU hearings’ on such an unreliable source as a person’s memory. You further consider that it is possible that the Council simply did not find all of the documents because it looked for them within its registered documents only, or because the documents have been deleted.

These general assumptions are, in accordance with the above-cited EU case-law, not sufficient to challenge the presumption of legality. The Council stated that it conducted a new, thorough investigation to ensure that the initial search had been exhaustive. There is no reason to doubt that the Council indeed conducted such an investigation and that it did not lead to the identification of any additional documents.

In your complaint, you further claim that it is not clear from the Council’s reply whether documents concerning the ‘Article 7 TEU hearings’ do not exist or whether the Council does not hold them. You argue that the Council’s statement that “no recordings and no transcriptions of the proceedings were made” [7]  concerns the discussion in the General Affairs Council only and not the six formal ‘Article 7 TEU hearings’. You further contend that the Council has not explained how the formal reports of the hearings are drawn up, even though you asked for this information in your confirmatory application.

In its confirmatory decision, the Council confirmed that all documents in its possession that correspond to your request are public and available for download in the Council’s public register of documents.[8] The Council reiterated this in its conclusion when it specified that all documents in its possession that contain information “related to the respective hearings of Hungary in accordance with Article 7(1) TEU are public and available for download in the public register of Council documents.”  The Council has thus clearly stated that it holds no more documents that correspond to your request beyond those that it listed in its confirmatory decision. The Council also, albeit very briefly, mentioned that the ‘Article 7 TEU hearings’ were prepared by the Permanent Representative Committee and that the corresponding summary records are available in the public register. We thus consider that the Council has given you a reasonable reply.

I appreciate this may not be your desired outcome but I hope you find these explanations useful. Thank you for having contacted the European Ombudsman.

Yours sincerely,

 

Rosita Hickey
Director of Inquiries

Strasbourg, 20/02/2024

 

[1] Full information on the procedure and rights pertaining to complaints can be found at https://www.ombudsman.europa.eu/en/document/70707.

[2] T-468/16, Verein Deutsche Sprach v Commission, paras 35 - 37; available at: https://curia.europa.eu/juris/liste.jsf?language=en&num=T-468/16  

[3] Ibid.

[4] T-639/15 to T-666/15 and T-94/16, Psara et al. v European Parliament, paras 33-36 ; available at: https://curia.europa.eu/juris/liste.jsf?language=en&td=ALL&num=T-639/15

[5] C-440/18 P, Vereine Deutsche Sprache v European Commission, paras 23f; available at: 

https://curia.europa.eu/juris/liste.jsf?num=C-440/18&language=en

[6] T-496/13, McCullogh v Cedefop, para 50; available at: https://curia.europa.eu/juris/liste.jsf?language=en&num=T-496/13  

[7] See para 10 of the Council‘s reply to your confirmatory application 37/c/01/23

[8] See para 7 of the Council‘s reply to your confirmatory application 37/c/01/23: “It [the search] has confirmed that all documents in the possession of the Council corresponding to the Applicant’s request are public and available for download in the public register of Council documents.”