The complainant asked the European Commission for public access to documents concerning its exchanges with the Hungarian government on judicial independence in the context of the Commission's assessment of Hungary's eligibility for cohesion funds. After consulting with the Hungarian authorities, the Commission refused access to some of the documents, invoking an exception under the EU legislation on public access to documents, arguing that disclosure would undermine its investigation (monitoring the reforms in Hungary). The Commission refused access to two other documents, arguing that disclosure could undermine a decision-making process. The complainant asked the Commission to review its decision (by making a confirmatory application).

In the course of the Ombudsman's inquiry, the Commission adopted its confirmatory decision. It maintained its decision to withhold access but invoked an additional exception under the legislation, arguing that the European Parliament had initiated court proceedings concerning the matter in the meantime, and disclosure could undermine these proceedings.

The Ombudsman took the view that the Commission had not sufficiently demonstrated how disclosing the documents could undermine the court proceedings in question. The Ombudsman was also not convinced by the Commission’s argument that disclosure could undermine an investigation. In addition, the Ombudsman stressed the importance of informing the public of the Commission and the Hungarian authorities’ actions to protect the financial interests of the EU and to ensure that the rule of law is respected. To address this, she made a recommendation that the Commission reconsider its position on the access request.