Secretariat‐General Head of Unit - C2 European Commission

 

Dear Mr X,

The Ombudsman has received a complaint against the European Commission. The complaint concerns the 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].

In November 2023, the complainant asked for public access to documents “by which the Hungarian authorities have informed the Commission [...] that they consider an enabling condition that was not fulfilled at the time of approval of a programme under [the CPR] has been subsequently fulfilled”, especially in relation to the issue of judicial independence. They also requested access to documents containing the Commission’s assessment of the submitted information.

The complainant received an initial reply to the access request in January 2024. The Commission identified five main documents as falling within the scope of the access request. Two of these documents were letters (and attachments) sent by Hungary to the Commission on 18 July and 19 October 2023 respectively. Three further documents were letters sent by the Commission to the Hungarian authorities on 26 September and 1 November 2023 respectively.

After consulting the Hungarian authorities on disclosure of the two main documents that they sent, the Commission gave (partial)[2] access to some of the attachments and refused to give access to the remaining documents in their entirety. In doing so, it invoked an exception under the EU legislation on access to documents (Regulation 1049/2001)[3], arguing that disclosure was prevented by the need to protect the purpose of inspections, investigations and audits[4]. More specifically, if the documents were to be disclosed, the Commission’s ongoing monitoring process would be seriously undermined.

As for its own documents, the Commission granted full access to one document and refused access to the two others in their entirety. It argued that this refusal was based on the exception for the protection of the institution's decision-making process[5] under Regulation 1049/2001. Disclosure of these “strategically important documents” would reveal the Commission’s strategy, thus negatively affecting the still ongoing negotiations with other Member States such as Poland. No overriding public interest in disclosure could be identified.

The complainant then asked the Commission to review its decision (by making a ‘confirmatory application’), challenging the application of the exceptions, and questioning whether the Commission identified all documents falling within the scope of the access request. In the absence of a reply within the extended time limit, which expired on 18 April 2024, the complainant turned to the Ombudsman.

We have decided to open an inquiry into the Commission’s implicit decision to refuse access under Regulation 1049/2001.

As a first step, we consider it necessary to review the following documents at issue in this case:

• the documents falling within the scope of the complainant’s access request;
• any documentation relating to the consultation of the Hungarian authorities at initial and confirmatory stage (to the extent that it exists).

We would be grateful if the Commission could send us copies of these documents, preferably in electronic format through encrypted e-mail,[6] by 28 May 2024.

We note that the extended time limit for the Commission to issue a response to the complainant’s confirmatory request expired in April 2024. We therefore urge the Commission, if it has not done so in the meantime, to provide the complainant with a confirmatory response, and to send us a copy of that response, by 11 June 2024.

Similarly, should the Commission wish to provide additional views, to be taken into account by the European Ombudsman during this inquiry, including on the complainant’s view that there might be additional documents falling within the scope of the request, we would be grateful if they could be provided to us by 11 June 2024 as well.

The documents subject to the public access request will be treated confidentially, along with any other material the Commission chooses to share with us that it marks confidential. Documents of this kind will be handled and stored in line with this confidential status and will be deleted from the Ombudsman’s files shortly after the inquiry has ended.

The inquiries officer responsible for the case is Ms Paulien Van de Velde-Van Rumst.

Yours sincerely,

Rosita Hickey
Director of Inquiries

Strasbourg, 17/05/2024

 

[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] One document was disclosed with personal data redactions only (under Article 4(1)(b) of Regulation 1049/2001). As the complainant does not contest these redactions, they fall outside of the scope of this inquiry.

[3] Under Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents:

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32001R1049.

[4] Article 4(2), third indent of Regulation 1049/2001.

[5] Article 4(3), second paragraph of Regulation 1049/2001.

[6] Encrypted emails can be sent to our dedicated mailbox.