Date: Monday, 03 June 2024

At the Commission premises

Present

European Commission

Director-General of the Commission’s Legal Service

Two representatives from the Commission’s Legal Service

European Ombudsman

Rosita Hickey, Director of Inquiries

Jennifer King, Legal Expert

Paulien Van de Velde-Van Rumst, Inquiries Officer

Background

The case concerns the European Commission’s refusal to give public access to documents related to exchanges between the Commission and Hungary on judicial independence under the Common Provisions Regulation (CPR)[1].

Purpose of the meeting

At the Commission’s request, a meeting was organised to inform the Ombudsman inquiry team of recent developments in the context of this complaint.

Procedural information

The Ombudsman inquiry team explained that they would draw up a draft report on the meeting to be sent to the Commission to ensure that the contents were factually accurate and complete. The meeting report would then be finalised, included in the file and provided to the complainant. No confidential information would be included in the report or otherwise provided to the complainant or any third party.

Information exchanged

The Commission representatives explained that the access request has been “overtaken by events”. The Commission’s decision on Hungary’s fulfilment of the horizontal enabling condition on the EU Charter of Fundamental Rights regarding judicial independence under the Common Provisions Regulation[2] was taken on 13 December 2023. Also, since the adoption of the initial reply in January 2024, the European Parliament (EP) has filed an annulment action before the Court of Justice of the EU (CJEU)[3] against the Commission’s decision.

As a result of this litigation, the Commission representatives stated that the Commission cannot disclose the documents at issue in this complaint as they will be annexed to the Commission’s defence in the litigation. They explained that granting public access to them would undermine the protection of court proceedings in accordance with Article 4(2), second indent of Regulation 1049/2001.

The Commission representatives referred in particular to the need to protect the serenity of the judicial proceedings before the CJEU. They also referred to the erga omnes effect of disclosure to a requester under Regulation 1049/2001 and the fact that privileged disclosure had already been refused by the Commission to the European Parliament under the inter-institutional Framework Agreement,[4] given that the Hungarian authorities had not consented to forwarding the relevant documents^[5]. The Hungarian authorities had consented to the disclosure of these documents to the European Parliament only in the context of the litigation.

In reply to a question from the Ombudsman inquiry team in relation to the possible existence of an overriding public interest, the Commission representatives stressed that, in this case, the overriding public interest is better served by the protection of the judicial proceedings and their serenity, free from outside influence. The written submissions in those proceedings are not made publicly available prior to the final judgment.

The Commission representatives clarified that the Commission’s decision under the CPR is an individual decision addressed to the relevant Member State and thus is not published. The Commission representatives also confirmed they are examining, as part of their review of the initial reply, whether further documents fall within the scope of the complainant’s access request.

Conclusion of the meeting

The inquiry team thanked the Commission representatives for their time and for the explanations provided, and the meeting ended.

 

Brussels, 3 June 2024

Rosita Hickey                                                                                                                                                                  Jennifer King

Director of Inquiries                                                                                                                                                         Legal Expert

 

[1] Regulation 2021/1060 laying down common provisions on the European Regional Development Fund, the European Social Fund Plus, the Cohesion Fund, the Just Transition Fund and the European Maritime, Fisheries and Aquaculture Fund and financial rules for those and for the Asylum, Migration and Integration Fund, the Internal Security Fund and the Instrument for Financial Support for Border Management and Visa Policy: https://eur-lex.europa.eu/eli/reg/2021/1060/oj.

[2] Commission Decision C(2023)9014 of 13 December 2023 on the approval and signature of the Commission assessment, in accordance with Article 15(4) of Regulation (EU) 2021/1060, of the fulfilment of the horizontal enabling condition ‘3. Effective application and implementation of the Charter of Fundamental Rights’ with regard to the deficiencies in judicial independence in Hungary.

[3] Case C-225/24: Action brought on 25 March 2024 – Parliament v Commission, available at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=OJ:C_202403063.

[4] Framework Agreement on relations between the European Parliament and the European Commission, OJ L 304, 20/11/2010, p. 47–62, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02010Q1120%2801%29-20180207.

[5] In accordance with Article 2.1 of Annex II to the Framework Agreement.