Made in accordance with Article 4(1) of the Statute of the European Ombudsman^[1]

Background to the complaint

1. EU cohesion funds aim to strengthen economic, social and territorial cohesion in the EU.[2] For EU funds that are managed jointly by the EU and its Member States, a ‘single rulebook’[3] applies, the Common Provisions Regulation[4] (CPR). The CPR determines that EU Funds should be implemented in accordance with fundamental rights and the EU Charter of Fundamental Rights in particular.[5] In addition, the CPR’s annexes lay down horizontal and thematic ‘enabling conditions’ that Member States have to fulfil in order to claim EU reimbursements for their expenditures for EU-funded programmes.[6] One of the horizontal enabling conditions is the effective application and implementation of the Charter.

2. In December 2022, the European Commission and Hungary concluded the Partnership Agreement[7] on EU funding for Hungary under the CPR for the period of 2021 to 2027.[8] On that occasion, the Commission expressed concern in relation to Hungary’s fulfilment of the horizontal enabling condition on the Charter. More specifically, in relation to judicial independence, the Commission held that the horizontal enabling condition would be considered fulfilled “once Hungary has taken the measures on the judiciary to which it has committed under the country's Recovery and Resilience Plan”[9]. Regarding child protection law, the protection of academic freedom and the right to asylum, the Commission considered that Hungary did not fulfil the horizontal enabling condition on the Charter.[10]

3. Around the same time, the Council of the EU, acting upon a proposal of the Commission, also adopted an Implementing Decision[11] under the Conditionality Regulation[12]. Concretely, the Council decided to suspend about €6.3 billion in EU funds attributed to Hungary for the protection of the EU budget in light of breaches of the principles of the rule of law regarding public procurement and anti-corruption investigations and prosecution.[13]

4. In December 2023, about a year later, the Commission concluded that Hungary had implemented the reforms of its judiciary as set out in its Recovery and Resilience Plan.[14] Therefore, the Commission decided[15] that Hungary now fulfilled the horizontal enabling condition on the Charter under the CPR with regard to judicial independence, making around €10.2 billion available to Hungary to claim reimbursements. The Commission nevertheless maintained its concerns in relation to child protection, academic freedom and the right to asylum.[16] The measures imposed on the basis of the Conditionality Regulation were not yet lifted either.[17]

5. Against this background, the complainant submitted a request for public access[18] to the Commission in November 2023, asking for documents “by which the Hungarian authorities have informed the Commission, pursuant to Article 15 paragraph 3 of [the CPR], that they consider an enabling condition that was not fulfilled at the time of approval of a programme under that regulation has been subsequently fulfilled”. In particular, the complainant requested access to Hungary’s self-assessment of its fulfilment of the horizontal enabling condition on the Charter as regards judicial independence. In addition, the complainant requested access to the exchanges between the Commission and the Hungarian authorities on these enabling conditions, and all documents containing the Commission’s assessment of the information submitted by Hungary.  

6. The complainant received an initial reply in January 2024. The Commission identified five documents as falling within the scope of the access request. Two of these documents were letters (with attachments) sent by Hungary to the Commission. Three further documents were letters sent by the Commission to the Hungarian authorities. All documents concerned the horizontal enabling condition on the Charter in relation to judicial independence.

7. After consulting the Hungarian authorities on disclosure of the two letters that they sent, the Commission gave (partial)[19] access to some of their attachments and refused access to the remaining documents in their entirety. In doing so, the Commission argued that disclosure would undermine the need to protect the purpose of inspections, investigations and audits[20]. 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[21] under the EU legislation on public access to documents (Regulation 1049/2001).

8. The complainant asked the Commission to review its decision (by making a ‘confirmatory application’), challenging the application of the exceptions, and questioning whether the Commission had identified all documents falling within the scope of the access request. More specifically, the complainant considered that their access request also encompassed documents concerning the thematic enabling conditions that Hungary did not fulfil.

9. In March 2024, the European Parliament brought to the Court of Justice of the EU (CJEU) an action for annulment of the Commission’s Decision on Hungary’s compliance with the Charter as regards judicial independence, alleging manifest errors of assessment, infringement of the duty to state reasons and misuse of powers (case C-225/24). This court case is currently pending.^[22] 

10. In the absence of a reply to their confirmatory application within the extended time limit, which expired in April 2024, the complainant turned to the Ombudsman.  

The inquiry

11. The Ombudsman opened an inquiry into the Commission’s implicit decision to refuse access under Regulation 1049/2001.

12. In the course of the inquiry, the Ombudsman inquiry team inspected the documents at issue in the complainant’s access request. The Ombudsman also invited the Commission to provide additional views on the complaint.

13. The Commission asked for a meeting[23] with the Ombudsman inquiry team. During the meeting, the Commission representatives explained that the complainant’s access request had been “overtaken by events”, namely Parliament’s annulment action against the Commission’s Decision of December 2023. They clarified that privileged access to the documents at issue had already been refused by the Commission to Parliament under the inter-institutional Framework Agreement[24]. The Hungarian authorities had only consented to forwarding the relevant documents^[25] in the context of the litigation.

14. The Commission also registered a new access request for documents concerning the assessment of the thematic enabling conditions that Hungary did not fulfil. In June 2024, the Commission granted the complainant access to all of the identified documents with personal data redactions only.

15. In July 2024, the Commission adopted its confirmatory decision on the complainant’s access request. At confirmatory stage, the Commission identified three further letters (sent by Hungary to the Commission) to which it refused access, with the exception of two publicly available annexes. The Commission no longer relied on the need to protect its decision-making process but rather considered that the documents were covered in their entirety by the exceptions to protect court proceedings[26] and the purpose of an investigation.

16. The complainant provided comments on the meeting report and the Commission’s confirmatory decision. They also indicated that they now consider that the Commission has identified all relevant documents. The possible existence of further relevant documents is thus no longer part of the Ombudsman’s inquiry.

Arguments presented

Protection of court proceedings

17. The Commission argued that, although the identified documents do not constitute pleadings, they have a relevant link with a dispute pending before the CJEU because they are part of the court file in case C-225/24 brought by Parliament. Given that the documents form the basis of the challenged Commission Decision, they are annexed to the Commission’s defence. Disclosing these documents would “reveal [...] preliminary positions of the Commission and legal assessment advanced by Hungary in that regard”. Consequently, the Commission considered that the principle of equality of arms and the sound administration of justice and the integrity of court proceedings would be undermined.  

18. More specifically, the Commission said that as regards the equality of arms “disclosure would expose the arguments put forward by the Commission to public debate and criticism that could unduly influence the outcome of ongoing court proceedings and upset the vital balance between the parties to a dispute, since only the institution concerned by an application for access to its documents, and not all the parties to the proceedings, would be bound by the obligation of disclosure”. As for the sound administration of justice, the Commission argued that “exposing judicial activities to external pressure, albeit only in the perception of the public, [...] would disturb the serenity of the proceedings. This is even more so as the contested Commission Decision was very much publicly criticised by various NGOs and academia”.  

19. The complainant contended that documents that have not been specifically drawn up for court proceedings can be covered by the exception only if they contain internal positions that have been ultimately disregarded.[27] According to the complainant, the non-disclosed documents do not contain such internal positions given that they have been (or will be) shared with Hungary and Parliament. In addition, the complainant argued that the documents likely contain factual information, Hungary’s self-assessment, or positions officially adopted (because communicated to Hungary through official channels) by the Commission during the preparation of the contested Decision. The complainant also indicated that the EU case-law relied on by the Commission[28] does not support its position at confirmatory stage. In particular, the question at issue in the cited cases was whether the other party in the dispute would receive access to the documents requested, while in the current action before the Court of Justice, Parliament will or has already received the documents.

20. In relation to the Commission’s arguments on the equality of arms and the serenity of court proceedings, the complainant noted that the Commission and Parliament have different roles in general and in these specific court proceedings. Parliament, as the applicant, exercises democratic oversight over the Commission, the defendant, when it takes its executive decisions. According to the complainant, one of the aims of Parliament was to increase transparency of the Commission’s contested Decision and “revealing information about the factual basis of the Commission’s decision, would improve the quality of the public debate surrounding the court case, and would in fact make it less likely that the integrity and serenity of the proceedings are undermined by baseless speculations and theories”.

Protection of the purpose of an investigation

21. According to the Commission, the procedure to assess fulfilment of the horizontal enabling condition on the Charter has to be considered an ‘investigation’ as defined by the case-law. The investigation starts when the Commission receives a Member State’s self-assessment under the CPR. In the case at hand, an assessment was carried out and closed with the adoption of a Commission Decision. However, given that Parliament challenged this Decision, the Commission could be called upon to recommence its investigation.

22. The Commission claimed that disclosure of the requested documents would seriously undermine the climate of mutual trust in which it conducts its bilateral dialogue with Hungary under the CPR. Without such cooperation from the Member States, the Commission would no longer be able to conduct its assessments under the CPR.

23. The Commission also considered that Hungary, when it was consulted, sufficiently justified its objection to disclosure of the documents referring to the Commission’s ongoing monitoring process under the CPR. 

24. The complainant argued that there is no ongoing investigation under the CPR and that there are several reasons other than an ongoing court case, such as programme amendments or modifications in a Member State impacting the fulfilment of enabling conditions, that could trigger the need for a new assessment of whether the horizontal (or thematic) enabling conditions continue to be fulfilled under the CPR. Therefore, if the exception under Article 4(2), third indent, could be invoked based on the mere possibility of a new assessment by the Commission, “no documents in this field would be made public, ever”. Given that no general presumption of confidentiality exists for documents related to the Commission’s assessments under the CPR, the complainant considered that the Commission could not rely on EU case-law[29] in relation to documents pertaining to a merger file for which such a presumption has been recognised.

25. In addition, the complainant considered that the Commission failed to demonstrate how the purpose of the investigation would be undermined by disclosure of the identified documents. When consulted, the Hungarian government did not mention that disclosure would undermine its willingness to cooperate under the CPR. Moreover, according to the complainant, Hungary is bound by the duty of sincere cooperation and has a financial interest in demonstrating its fulfilment of the enabling conditions under the CPR. Indeed, if the Hungarian authorities decided to stop cooperating with the Commission, the purpose of the Commission’s investigation under the CPR would not be undermined: “the Commission has the possibility to adopt a decision claiming the non-fulfilment of the enabling condition, in which case no EU money is paid for the affected specific objectives, so that the effective and efficient use of Union support is not threatened”. 

26. The complainant also noted that the Commission disclosed several documents, containing exchanges with the Hungarian authorities, in reply to their parallel access request regarding the thematic enabling conditions under the CPR without considering that mutual trust could be undermined.

Overriding public interest in disclosure

27. The Commission argued that the complainant’s general claims about the need for a ‘public debate’ and references to transparency are not sufficient to conclude the existence of an overriding public interest in disclosure of the documents at issue. It contended that it has satisfied its obligation to state reasons by publishing a press release[30] in relation to its contested Decision of December 2023. Moreover, public disclosure “would shift the legality assessment of Commission decision into a parallel debate in the public sphere affecting the serenity of the court proceedings in case C-225/24”.

28. By contrast, the complainant said that the ongoing legal dispute supports the view that an overriding public interest in disclosure exists. Judicial independence is the “very cornerstone of the rule of law” and “transparency is all the more pressing in the case of Hungary because two EU institutions adopted opposing views”. In the complainant’s view, disclosure would “enable citizens to better inform themselves on the question and form their own opinion even before the Court delivers its judgment”. Forming such an informed opinion could be important for Hungarian citizens, citizens or businesses planning on moving, and judges and prosecutors in other EU countries dealing with the question of judicial cooperation with Hungary. In addition, the complainant considered that the exchanges with the Commission likely had an impact on Hungary’s legislative reforms and that citizens should have the possibility to inform themselves of the considerations underpinning legislative action to exercise their democratic rights. The complainant also referred to the need to preserve citizens’ trust in the EU in light of media reports suggesting a “deal” between the Commission and the Hungarian government.[31]

The Ombudsman's assessment leading to a recommendation

Protection of court proceedings

29. The documents requested by the complainant comprise exchanges between the Commission and the Hungarian authorities concerning Hungary’s fulfilment, under the CPR, of the horizontal enabling condition on the Charter as regards judicial independence. The Ombudsman’s inspection showed that the documents contain Hungary’s self-assessment, formal questionnaires sent by the Commission to the Hungarian authorities, and the official replies from the relevant Hungarian authorities to those questions. As the Commission indicated in its confirmatory decision, these exchanges form the basis of the Commission Decision of December 2023 that is currently challenged before the CJEU. The Commission argued that the documents cannot be made public to protect these ongoing court proceedings.

30. For the court proceedings exception under Regulation 1049/2001 to apply, the documents at issue must either be drawn up for the purpose of specific court proceedings or have a relevant link[32] to such ongoing proceedings. EU case-law also requires that an EU institution demonstrate that these court proceedings would be undermined by disclosure of the requested documents. More specifically, the exception is intended to protect the principle of equality of arms on the one hand and the sound administration of justice and the integrity of court proceedings on the other.[33]

31. The documents at issue are not pleadings[34], notwithstanding the fact that they have been annexed to the Commission’s defence in case C-225/24. The fact that documents are part of the court file does not in itself suffice to apply the exception. The Commission is required to demonstrate an actual or specific risk to the court proceedings arising from disclosure that is reasonably foreseeable and not hypothetical. For documents that are not drawn up for the purpose of specific court proceedings, the CJEU has stated that this risk could occur “if parties were to benefit from privileged access to internal information belonging to the other party and closely connected to the legal aspects of pending [...] proceedings”[35].

32. While the Ombudsman acknowledges that the documents at issue have a relevant link with the proceedings brought by Parliament, she does not find that the Commission has demonstrated that the principle of equality of arms or the integrity of the court proceedings concerned would be compromised by their disclosure.  

33. As to the equality of arms, the Ombudsman notes that Parliament, the ‘other party’, already has privileged access to the requested documents as part of the court proceedings. Disclosure of these documents in the context of this access request would thus not give Parliament, as the applicant in the proceedings, a further advantage. The usual justification for invoking the court proceedings exception - avoiding that a party receives access to internal information of the other party - is thus not applicable in the situation at issue.

34. In addition, the Commission does not argue that disclosure would oblige it to defend itself against internally divergent views[36] which would upset the vital balance between the parties to the litigation.

35. Instead, the Commission claims that disclosure of the documents would impact the equality of arms by exposing the Commission’s arguments (and not those of Parliament) to “public debate and criticism that could unduly influence the outcome” of these proceedings. In relation to the sound administration of justice and the integrity of court proceedings, the Commission similarly claimed that disclosure would “expos[e] judicial activities to external pressure, albeit only in the perception of the public” and that its Decision “was very much publicly criticised by various NGOs and academia”.

36. The review of the documents by the Ombudsman inquiry team showed, however, that the documents contain a considerable amount of factual information provided by the Hungarian authorities in reply to questions posed by the Commission. They contain only limited ‘positions’ or ‘assessments’, especially when it comes to the Commission. In addition, given that the documents were exchanged between the Commission and the Hungarian authorities, via official channels, it is clear that they are neither “purely internal document[s]”[37] nor is it apparent that they contain internal legal positions on contentious issues. The series of questions posed by the Commission, to which Hungary replied, formed the factual basis for the Commission’s assessment in its contested Decision in December 2023, which was for a time published by the Commission. Therefore, the Ombudsman remains unconvinced how the Commission’s ability to defend its Decision before the Court would be impeded by making the requested documents available to the public.

37. The CJEU has stated to the contrary that, disclosure of documents “that contain elements constituting the factual basis of the Commission’s exercise of its powers [...] may prove to be necessary in order to meet the objectives”[38] of Regulation 1049/2001. Indeed, the Ombudsman is of the view that “Union citizens are [...] intended to understand how and for what reasons the administration takes its decisions”[39], even if - and arguably even more so when - such decisions are afterwards contested before the CJEU.

38. In view of the above, the Ombudsman is not convinced that the Commission was justified to refuse access to documents, which contain the factual basis of the contested Decision, in order to shield the court proceedings from public debate and criticism and to protect the judges from ‘undue influence’. When deciding on the lawfulness of the Commission’s Decision, the independence of the CJEU judges is guaranteed by other means.

Protection of the purpose of an investigation

39. According to the CJEU, “a structured and formalised Commission procedure that has the purpose of collecting and analysing information in order to enable the institution to take a position in the context of its functions provided for by the EU and FEU Treaties”[40] can be considered an investigation. Therefore, it is reasonable for the Commission to consider its assessment of enabling conditions under the CPR an investigation for the purposes of Regulation 1049/2001.

40. As the Commission indicated in its confirmatory decision, its assessment and thus investigation under the CPR ended with the adoption of its contested Decision of December 2023. Relying on the CJEU’s view in Commission v Editions Odile Jacob[41], the Commission argued that it may “be called upon to recommence its investigation activities with a view to the possible adoption of a new decision”. Consequently, the Commission considers that the purpose of its investigation under the CPR should continue to be protected and it also refers to its consultations of the Hungarian authorities in this regard. The Ombudsman would like to make three observations in relation to the Commission’s application of the exception for the protection of an investigation to the requested documents.

41. First, it is important to distinguish the case at hand from the judgment relied on by the Commission. In Commission v Editions Odile Jacob, the documents concerned internal memoranda that were part of a merger control file. As mentioned before, the Ombudsman does not consider the requested documents to be internal documents. In addition, a general presumption of confidentiality[42] has been recognised for documents that are part of a merger control file. No such presumption of confidentiality has been recognised for the type of documents at issue in this case.

42. Second, the Commission’s tasks under the CPR imply a continuous monitoring exercise. As the complainant pointed out, several circumstances other than court proceedings, such as programme amendments[43] or modifications in a Member State impacting the fulfilment of enabling conditions[44], may trigger the Commission’s reassessment of the fulfilment of enabling conditions. The Ombudsman finds that it would be disproportionate to exclude public scrutiny of the measures Member States proposed to remedy concerns and/or how the Commission assessed fulfilment with these conditions until the end of the current multiannual financial framework based on the mere possibility of a new assessment by the Commission.

43. In any event, the Commission’s investigation into Hungary’s fulfilment of the horizontal enabling conditions on the Charter as regards judicial independence has become devoid of any object[45] and the prospect of any new assessment too hypothetical[46] to be taken into account. In particular, while the factual information contained in the requested documents may remain relevant, the Commission’s assessment - which is included in the documents to a very limited extent only - would have to be replaced to take account of the CJEU’s view and more recent factual information.

44. Finally, the Ombudsman considers it unlikely that the documents’ disclosure would harm the climate of mutual trust between the Commission and a Member State under the CPR. The EU Treaties[47] establish a duty of sincere cooperation between the EU institutions and the Member States. In addition and as mentioned by the complainant, Member States have a strong financial incentive to provide the Commission with the information requested given that the CPR determines that expenditure of a Member State “shall not be reimbursed by the Commission until the Commission has informed the Member State of the fulfilment of the enabling conditions”[48]. In the Ombudsman’s view, disclosure of the requested documents would thus not undermine the purpose of the Commission’s investigations under the CPR.

45. Overall, the Ombudsman is not convinced that the Commission was justified in relying on the exception for the protection of the purpose of investigations. 

Overriding public interest in disclosure

46. As noted above in paragraphs 38 and 45, the Ombudsman considers that the Commission has not sufficiently substantiated that the requested documents are covered by the exceptions invoked. Thus, strictly speaking, it is not necessary to assess whether there is an overriding public interest in disclosure. The Ombudsman would nevertheless like to share some observations on the public interest in the requested documents. 

47. The Charter of Fundamental Rights is central to the EU’s foundations based on the principles of democracy and the rule of law.[49] As for the use of significant EU funds, the CPR determines explicitly[50] that such use should be in compliance with fundamental rights and the Charter. Moreover, judicial independence is a crucial component of the rule of law. As such, it is critical to inform 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.

48. Given the nature of the documents at issue and their relevance for the EU’s budget, there is considerable public interest in the measures proposed by Member States to comply with these conditions and so too the manner in which the Commission assesses their fulfilment. As explained in relation to the application of the exceptions above, the Ombudsman cannot agree with the Commission’s view that public access to the documents “would shift the legality assessment of [the contested] Commission decision into a parallel debate in the public sphere affecting the serenity of court proceedings”.

49. In addition, the Ombudsman finds the press release referred to by the Commission too limited in substance to satisfy the public interest. According to the complainant, the contested Commission Decision itself was publicly available on the Commission’s Public Register for a time before it was removed.[51] The Ombudsman notes that a very similar Decision addressed to Poland[52] is nevertheless publicly available. Although the publication of the contested Decision does not form part of the Ombudsman’s inquiry, she trusts that the Commission will consider (re)publishing the Decision in light of the important public interest attached to the enabling conditions under the CPR.

50. In light of the above, the Ombudsman finds that the Commission’s refusal to give wide public access to the documents at issue constituted maladministration. She therefore makes a corresponding recommendation below.

Recommendation

On the basis of the inquiry into this complaint, the Ombudsman makes the following recommendation to the Commission:

The European Commission should reconsider its position on the access request with a view to providing significantly increased access, taking into account the Ombudsman’s considerations shared in this recommendation.

The Commission and the complainant will be informed of this recommendation. In accordance with Article 4(2) of the Statute of the European Ombudsman, the Commission shall send a detailed opinion by 13 May 2025.

Emily O'Reilly
European Ombudsman

Strasbourg, 13/02/2025

 

[1] Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.L_.2021.253.01.0001.01.ENG&toc=OJ%3AL%3A2021%3A253%3ATOC

[2] For more information, see: https://ec.europa.eu/regional_policy/2021-2027_en.

[3] For more information, see: https://commission.europa.eu/funding-tenders/find-funding/funding-management-mode/common-provisions-regulation_en.  

[4] Regulation 2021/1060 of 24 June 2021 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, available at: https://eur-lex.europa.eu/eli/reg/2021/1060/oj.

[5] Article 9(1) of Regulation 2021/1060.

[6] Article 15 of Regulation 2021/1060.

[7] See: https://commission.europa.eu/publications/partnership-agreement-hungary-2021-2027_en.

[8] For more information, see: https://ec.europa.eu/commission/presscorner/detail/en/ip_22_7801.

[9] ibid. For an overview, see: https://www.europarl.europa.eu/RegData/etudes/BRIE/2023/741581/IPOL_BRI(2023)741581(ANN01)_EN.pdf#page=8 and https://ec.europa.eu/commission/presscorner/detail/en/ip_22_7273. The Member States’ Recovery and Resilience Plans were agreed on with the Commission and approved by the Council in the context of the Recovery and Resilience Facility (RRF), a temporary EU funding programme created in response to the COVID-19 pandemic and the impact caused by Russia’s invasion of Ukraine (see: https://commission.europa.eu/business-economy-euro/economic-recovery/recovery-and-resilience-facility_en).

[10] ibid.

[11] Council Implementing Decision 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, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32022D2506.

[12] Regulation 2020/2092 of 16 December 2020 on a general regime of conditionality for the protection of the Union budget, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.LI.2020.433.01.0001.01.ENG&toc=OJ:L:2020:433I:TOC.

[13] For more information, see: https://www.consilium.europa.eu/en/press/press-releases/2022/12/12/rule-of-law-conditionality-mechanism/.  

[14] For more information, see: https://ec.europa.eu/commission/presscorner/detail/en/ip_23_6465.

[15] Commission Decision 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 of 13 December 2023, C(2023)9014, available to request at: https://ec.europa.eu/transparency/documents-register/detail?ref=C(2023)9014&lang=en.   

[16] For more information, see: https://ec.europa.eu/commission/presscorner/detail/en/ip_23_6465.

[17] Commission Decision of 13.12.2023 on the reassessment, on the Commission’s initiative, of the fulfilment of the conditions under Article 4 of Regulation (EU, Euratom) 2020/2092 following Council Implementing Decision (EU) 2022/2506 of 15 December 2022 regarding Hungary, available at: https://commission.europa.eu/document/83f08b3a-bf4a-4462-a361-88d44692452b_en. In December 2024, the Commission maintained its view that the measures cannot yet be lifted, see: Commission Decision of 16.12.2024 pursuant to Article 7(2) of Regulation 2020/2092 of 16 December 2020 on a general regime of conditionality for the protection of the Union budget, concerning a written notification from Hungary with regard to Article 2(2) of Council Implementing Decision (EU) 2022/2506 of 15 December 2022, available at: https://commission.europa.eu/document/8003e1ad-8e79-4238-bf76-af1fcd2b5efe_en. As long as Hungary has not addressed all rule of law concerns under the conditionality regime, it cannot claim disbursements under the Recovery and Resilience Facility either.  

[18] 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.

[19] 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.

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

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

[22] Action brought on 25 March 2024 – Parliament v Commission, Case C-225/24, see: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62024CN0225.

[23] The report of the meeting is available at https://www.ombudsman.europa.eu/en/doc/inspection-report/en/196933.

[24] 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.

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

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

[27] Referring to Judgment of 15 September 2016, Philip Morris v Commission, T‑18/15, paragraphs 65 and 73: https://curia.europa.eu/juris/liste.jsf?language=en&num=T-18/15 and Judgment of 28 September 2022, Leino-Sandberg v Parliament, T‑421/17 RENV, paragraphs 50-54: https://curia.europa.eu/juris/liste.jsf?language=en&td=ALL&num=T-421/17%20RENV.

[28] Judgment of 24 January 2024, Veneziana Energia Risorse Idriche Territorio Ambiente Servizi SpA (Veritas) v Commission, T-602/22: https://curia.europa.eu/juris/liste.jsf?num=T-602/22&language=EN; Judgment of 29 October 2020, Intercept Pharma v EMA, C-576/19 P: https://curia.europa.eu/juris/liste.jsf?num=C-576/19&language=EN. 

[29] Judgment of 28 June 2012, Commission v Éditions Odile Jacob, C-404/10 P: https://curia.europa.eu/juris/liste.jsf?num=C-404/10&language=EN.

[30] Available at: https://ec.europa.eu/commission/presscorner/detail/en/ip_23_6465.

[31] See: https://www.politico.eu/newsletter/brussels-playbook/commissioner-hints-at-eu-deal-to-give-orban-billions/.

[32] See, for instance, Veritas v Commission, paragraph 58.

[33] Judgment of 6 February 2020, Compañía de Tranvías de la Coruña, SA v Commission, T‑485/18, paragraph 38: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62018TJ0485_RES. See also: Philip Morris v Commission, T‑18/15, paragraph 56; Leino-Sandberg v Parliament, paragraph 38.

[34] For which a general presumption of confidentiality exists while the relevant court proceedings are ongoing (see: Judgment of 21 September 2010, Sweden and API v Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, paragraph 94: https://curia.europa.eu/juris/liste.jsf?language=en&td=ALL&num=C-514/07%20P).

[35] Veritas v Commission, paragraph 58. See also: Compañía de Tranvías de la Coruña, SA v Commission, paragraph 42.

[36] Philip Morris v Commission, T‑18/15, paragraph 73; Leino-Sandberg v Parliament, paragraph 51.

[37] Judgment of 26 July 2023, Troy Chemical Company v Commission, T‑662/21, paragraph 65: https://curia.europa.eu/juris/document/document.jsf?text=&docid=275848&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=1269378.   

[38] Philip Morris v Commission, T‑18/15, paragraph 73; Judgment of 15 September 2016, Philip Morris v Commission, T-796/14, paragraph 97: https://curia.europa.eu/juris/liste.jsf?num=T-796/14.

[39] Opinion of Advocate General Kokott of 3 March 2011, Sweden v MyTravel and Commission, C‑506/08 P, paragraph 48: https://curia.europa.eu/juris/document/document.jsf?text=&docid=84222&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=2304636.

[40] Judgment of 7 September 2017, France v Schlyter, C-331/15 P, paragraph 46: https://curia.europa.eu/juris/document/document.jsf?text=&docid=194104&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=871574.

[41] Commission v Éditions Odile Jacob, paragraph 130.

[42] ibid, paragraph 123.

[43] Article 15(2) of Regulation 2021/1060.

[44] Article 15(6) of Regulation 2021/1060.

[45] Judgment of 14 September 2022, Pollinis France v Commission, T‑371/20 and T‑554/20, paragraph 56: https://curia.europa.eu/juris/liste.jsf?num=T-371/20&language=en as confirmed in the Judgment of 16 January 2025, Commission v Pollinis France, C-726/22 P: https://curia.europa.eu/juris/liste.jsf?language=en&td=ALL&num=C-726/22%20P. 

[46] ibid, paragraph 57.

[47] Article 4(3) TEU. See also: Pollinis France v Commission, paragraph 113.  

[48] Article 15(6) of Regulation 2021/1060.

[49] Preamble to the Charter.

[50] Article 9(1) of Regulation 2021/1060.

[51] See: https://ec.europa.eu/transparency/documents-register/detail?ref=C(2023)9014&lang=en.

[52] See: https://ec.europa.eu/transparency/documents-register/detail?ref=C(2024)1441&lang=en.