Date: Thursday, 11 July 2024

At the premises of the Council of the European Union

Present

Council of the European Union

Two representatives from the General Secretariat of the Council’s Information Services Unit (COMM.2.C) - Transparency 

Three representatives from the Council Legal Service

European Ombudsman

Tanja Ehnert - Inquiries Coordinator

Paulien Van de Velde-Van Rumst - Inquiries Officer

Alice Bernard - Inquiries Officer

Anežka Hlinovská - Inquiries Trainee

Background

The complaint concerns the Council's refusal to grant full public access to three documents related to the deliberations in the Council following the Commission’s 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. The Commission issued the proposal following exchanges between the Commission and the Hungarian authorities, after which the Commission decided that it was justified to propose the adoption of appropriate measures in line with the Conditionality Regulation.

Purpose of the meeting

The purpose of the meeting was for the Ombudsman inquiry team to obtain clarifications on the redactions in the requested documents.

Introduction and procedural information

The Ombudsman inquiry team introduced themselves, thanked the General Secretariat of the Council (GSC)’s representatives for meeting with them and set out the purpose of the meeting. They outlined the legal framework that applies to meetings held by the Ombudsman, in particular, that the Ombudsman would not disclose any information identified by the Council as confidential, neither to the complainant nor to any other person outside the Ombudsman’s Office, without the Council’s prior consent.^[1]

The inquiry team explained that they would draw up a draft report on the meeting to be sent to the GSC 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 GSC representatives noted that a key element to consider in the context of this complaint is that the requested documents were produced by the European Commission and consist of information provided by the European Commission to the Member States in the Council’s Budget Committee. When consulted on the public access request at issue in this complaint, in accordance with Article 4(4) of Regulation 1049/2001, the Commission emphasised that the requested documents contain an exchange of preliminary considerations at technical level, which do not form an official or final position of the Commission.

The GSC representatives explained that the specific parts of the documents that the Council refused access to are directly related to issues which are the subject of pleas in law in ongoing court cases before the Court of Justice of the European Union (CJEU). More specifically, as mentioned in the confirmatory decision, the Council’s Implementing Decision (EU) 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 is currently contested before the CJEU by certain public interest trusts, which are the entities specifically concerned by the redacted parts of the documents in question. In addition, more recently, the European Parliament submitted an action for annulment of a decision of the Commission of 13 December 2023 to make funds available to Hungary under the Common Provisions Regulation.[2] Although the latter case before the CJEU does not concern the Council’s Implementing Decision, certain elements contained in the documents are relevant and their release could negatively impact the position of the defendant in those proceedings and the author of the documents, the Commission. The GSC representatives provided further explanations regarding the scope of the relevant court proceedings and how these proceedings could be undermined if the requested documents were to be disclosed in their entirety. These explanations are contained in a confidential annex to this meeting report.

The GSC representatives noted that, in accordance with CJEU case-law, any document containing information that can impact the equality of arms in court proceedings can be refused to be disclosed. It was the common assessment of the Council and the Commission that such impact would occur if access was granted to the specific elements that were redacted. Following a thorough assessment of the Council and the Commission, wide access had nonetheless been granted to the remainder of the requested documents.

While the disclosure of the redacted parts would affect the court proceedings at stake and can impact on the equality of arms of the institutions before the CJEU, the GSC representatives considered that the public would not benefit from releasing these very specific elements as they would not have any additional value for the public debate. The Council representatives added that the very specific and preliminary considerations related to the public interest trusts are at the core of the ongoing court proceedings and not at the core of the public debate regarding the rule of law in Hungary. Therefore, the Council considered that there is no overriding public interest in their disclosure.

Conclusion of the meeting

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

 

Brussels, 11 July 2024

Tanja Ehnert                                                                                                            Paulien Van de Velde-Van Rumst  

Inquiries Coordinator                                                                                           Inquiries Officer

 

[1] Article 4.8 of the European Ombudsman’s Implementing Provisions.

[2] Action brought on 25 March 2024, Case C-225/24, Parliament v Commission.