Made in accordance with Article 2(10) of the Statute of the European Ombudsman[1]

Background to the complaint

1. The rule of law is one of the founding values of the EU.[2] The European Commission has several tools at its disposal to ensure respect for the rule of law in the EU Member States. In 2021, the Conditionality Regulation[3] or ‘conditionality regime’ was added as such a tool.[4] The conditionality regime allows the Commission to propose to the Council of the EU to adopt measures intended to protect the EU’s financial interests against breaches of the rule of law principles.

2. In December 2022, the Council, acting upon a proposal of the Commission[5], adopted for the first time an Implementing Decision[6] under the Conditionality Regulation. 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.[7] In December 2023 and 2024, the Commission decided to maintain these measures.[8]

3. One of the measures[9] taken to protect the EU’s financial interests is the suspension of EU funding for Hungarian public interest trusts or any entity maintained by such a public interest trust. The Commission and the Council are concerned about the lack of transparency of the management of EU funds by these trusts and about the fact that public procurement and conflict of interest rules do not apply to them.[10]

4. In March 2023, six universities/higher education institutions maintained by Hungarian public interest trusts brought an action for annulment[11] to the Court of Justice of the EU (CJEU) against the relevant provision of the Council Implementing Decision. Some of these institutions also contested[12] a related joint statement from the relevant Commissioners and Commission communications on the same topic.

5. Against this background, in December 2023, the complainant submitted a request for public access to documents[13] referred to in the explanatory memorandum or the main text of the Commission’s proposal for the Conditionality Regulation. More specifically, the complainant asked the Commission for public access to the Commission’s ‘Request for information’, ‘Written notification’ and ‘Intention letter’ as sent to Hungary. In addition, the complainant’s access request covered a study on Hungarian public procurement data, “all documents that contain information about ‘the examination of certain tender data’ and ‘reports by media and stakeholders’” as referred to in the proposal, and documents related to relevant audits and financial recommendations from the Commission.

6. Not having received a reply from the Commission, in February 2024, the complainant asked the Commission to review this implicit refusal of their request (by making a ‘confirmatory application’).

7. In March 2024, the Commission sent the complainant an initial reply to their access request. The Commission granted partial access to the ‘Request for information’, the ‘Written notification’ and the ‘Intention letter’. In doing so, it invoked exceptions under the EU legislation on public access to documents (Regulation 1049/2001), arguing that full disclosure would undermine the protection of court proceedings[14] and its decision-making process[15].

8. In addition, the Commission gave full access to the study and six documents containing information about the examination of certain procurement data. The Commission also provided the complainant with several hyperlinks to publicly available reports by media and stakeholders. As for the documents related to audits and financial recommendations, the Commission indicated that a separate reply would follow.

9. In April 2024, the Commission closed the complainant’s confirmatory application and informed the complainant that they may make a new one if they wished to challenge the substance of the Commission’s reply of March 2024.

10. In the same month, dissatisfied with the Commission’s reply to their access request and its decision to close their confirmatory application, the complainant turned to the Ombudsman.

The inquiry

11. The Ombudsman opened an inquiry into the Commission’s refusal to grant full access under Regulation 1049/2001.

12. In the course of the inquiry, the Ombudsman inquiry team inspected the documents at issue and reviewed the additional views[16] that the Commission provided. The Ombudsman inquiry team also met with representatives of the Commission on two occasions to obtain further clarifications on the Commission’s refusal to grant full access to the requested documents and its decision to close the complainant’s confirmatory application.

13. The Ombudsman then shared with the complainant the Commission’s additional views and the report on the meetings[17]. The complainant provided comments on both documents. 

Arguments presented to the Ombudsman

On the application of the exception for the protection of court proceedings (Article 4(2), second indent, Regulation 1049/2001)

14. The Commission argued that some of the information included in the documents relates to matters currently challenged before the CJEU. Therefore, it considered that these parts of the documents are covered by the court proceedings exception.

15. The complainant contested the Commission’s application of this exception in their complaint to the Ombudsman. More specifically, they stated that the Commission did not demonstrate “how disclosure would specifically and actually undermine the protection of court proceedings in a reasonably foreseeable and not purely hypothetical manner”. In addition, they noted that the documents were not specifically drawn up for the purpose of court proceedings and, therefore, that they could only be covered by the exception if they would reveal internal positions that were ultimately disregarded[18].

16. In the meeting with the Ombudsman inquiry team, the Commission representatives specified that the redactions correspond to the Commission’s assessment of public interest trusts as sent to Hungary and the replies from Hungary to the Commission’s questions. Disclosure would thus reveal the Commission’s line of reasoning which it should be able to use to defend its case before the CJEU. In addition, disclosing the information would put the applicants in these cases on an equal footing with a Member State, to which the redacted information was addressed, and thus in a more advantageous position for the court proceedings.

17. According to the complainant, the documents at issue are not internal documents as they were sent to the Hungarian authorities. Therefore, they cannot contain internal positions and disclosure would not compromise the Commission’s position before the CJEU. To the contrary, the complainant pointed out that if the Commission wants to use the redacted information to defend itself in front of the CJEU, this information cannot be detrimental to the Commission’s case. Finally, the complainant did not see the relevance, from an access to documents perspective, of the Commission’s argument that the applicants in the court cases would be put on an equal footing with the Member State concerned if full access was granted to the requested documents.

On the application of the exception for the protection of an institution’s decision-making process (Article 4(3) Regulation 1049/2001)

18. Other parts of the documents at issue are, according to the Commission, covered by the exception set out in the first subparagraph of Article 4(3) of Regulation 1049/2001. To protect the Commission and the Council’s ongoing decision-making, the Commission was required to redact “additional considerations regarding certain aspects, on which the Commission reserves its right to open a procedure under the Conditionality Regulation in the future”.

19. In this regard, the complainant argued in their complaint to the Ombudsman that the exception in Article 4(3) of Regulation 1049/2001 cannot apply to documents that are meant for external communication and that were sent to Hungary. Moreover, the complainant considered that the decision-making process concerned was closed when the Commission made its proposal to the Council to apply the Conditionality Regulation in relation to the rule of law situation in Hungary in September 2022. According to the complainant, it is the Commission’s duty to open the procedure whenever the conditions under the Conditionality Regulation are fulfilled: “this, in itself, does not constitute an ongoing decision-making process”.

20. In the meeting with the Ombudsman inquiry team, the Commission representatives clarified that the information redacted on the basis of this exception relates more specifically to deficiencies in public procurement, risks of conflict of interest, cooperation with OLAF (the European Anti-Fraud Office), anti-corruption investigations and prosecution, and judicial independence. Unlike aspects on which the Commission reserves the right to open a procedure in the future, the Commission representatives pointed out that information on issues that did form the basis of its proposal under the Conditionality Regulation had been disclosed.

21. The Commission representatives explained that some of the redactions concern information that remains relevant for the entire programming period of the current multiannual financial framework (MFF 2021-2027). Moreover, the Commission considered that the procedure under the Conditionality Regulation is not closed. In so far as the measures adopted are still in place, the Commission continues its monitoring and its exchanges with Hungary. In addition, it adopts a yearly reassessment and it could reopen the procedure for issues not yet covered by the current Council Implementing Decision.

22. The Commission representatives also elaborated on the risks that could occur if the redacted information was disclosed. First, they pointed out that the redacted information is subject of an ongoing bilateral dialogue with the Member State concerned. In light of the principle of sincere cooperation, the Commission must preserve the trust of this Member State and the confidentiality of the process. Second, the Commission representatives argued that disclosure would significantly increase the external pressure on its decision-makers and replying to additional requests for information, which may be triggered by further disclosure, would divert resources from the actual application of the Conditionality Regulation[19]. Finally, the Commission representatives indicated that “if the Commission disclosed what specific sectors and managing authorities the Commission is concerned about for the future, certain actors in these sectors, or in such managing authorities, might start to act differently and, for example, change their ways of working to conceal certain issues or behaviours”.

23. In addition, the Commission representatives considered that the Commission’s strategy and the investigative technique it uses for the application of the Conditionality Regulation should not be revealed as it is still developing its practice. In this regard, the Commission representatives also noted that the redacted information may remain relevant for future assessments under the Conditionality Regulation.

24. In their comments on the meeting report, the complainant referred to the wording of Article 4(3) of Regulation 1049/2001. According to the complainant, this exception can only be applied to documents “drawn up by an institution for internal use or received by an institution” which the requested documents are not. In addition, they indicated that they are not convinced of the Commission’s assertion that all information on issues that had formed the basis for its proposal had been disclosed. For instance, some redactions[20]  appear to concern public procurement issues that could very well be the basis of the Commission’s proposal.

25. The complainant was equally unconvinced that disclosure would be prevented by the need to ensure the Commission’s ability to monitor and investigate issues relevant for the application of the Conditionality Regulation in the future. If this argument were to be accepted, it would lead to “a secrecy unlimited in time” given that the Commission, as the “protector of EU law and EU funds” should always monitor aspects relevant for the application of the regulation. Furthermore, the Commission would always have the possibility to explain “why it thought in September 2022 that certain aspects did not merit sanctions under the Conditionality Regulation, and what has changed to alter its assessment”.

26. According to the complainant, the Commission’s argument that disclosure would trigger further requests for information and thus divert resources from the Commission’s application of the Conditionality Regulation, “goes against not only the letter but especially the spirit of the Access to Documents Regulation”. 

27. Finally, the complainant indicated that the Hungarian authorities have access to the redacted parts of the requested documents and that they can thus already conceal issues or behaviours if they would want to. In the complainant’s view, this argument of the Commission relates to the overall effectiveness of the Conditionality Regulation rather than to the decision-making at issue. They argued that “even if this risk exists in reality, the adequate response from the Commission’s side is not to keep information secret, but to strengthen its investigative capacities, or maybe propose changes to the Conditionality Regulation, in order to make sure that no actor could cause financial harm to the EU by circumventing the rules”.

On the assessment of the existence of an overriding public interest

28. The Commission contended that it was not able to identify an overriding public interest in disclosure and that the complainant did not refer to any such interest in their application for public access.

29. The complainant did not raise arguments in relation to the possible existence of an overriding public interest in disclosure in their complaint to the Ombudsman.

30. In the meeting with the Ombudsman inquiry team, the Commission representatives referred to the need to protect the trust of the Member State concerned. In addition, they stated that disclosure of the redacted information could impact the financial markets and the interests of all taxpayers. Concretely, “if the Commission would disclose potential issues in a Member State’s conduct, this could have serious financial repercussions for the Member State (e.g. lower credit rating), regardless of whether those issues are included in a proposal for a Council Implementing Decision under the Conditionality Regulation”.

31. The complainant argued in their comments on the meeting report that there is an overriding public interest in full disclosure of the documents. More specifically, given that the Commission is applying the Conditionality Regulation for the first time, openness about its actions would be “needed to ensure foreseeability, trust and legal certainty”.[21] The public interest would be even more pressing given that some of the funds could be permanently withheld from Hungary after two years.[22] According to the complainant, the overriding public interest cannot be negated by reference to the trust between the Commission and Hungary or the potential financial repercussions for Hungary.

The Ombudsman's assessment

On the application of the exception for the protection of court proceedings (Article 4(2), second indent, Regulation 1049/2001)

32. Under the Conditionality Regulation, the Commission may request a Member State to provide the information it needs[23] to assess whether the conditions to apply the regulation are fulfilled. Before adopting a proposal, the Commission must send the Member State concerned a written notification “setting out the factual elements and specific grounds on which it based its findings”[24] and it should give this Member State an opportunity to submit its observations[25]. The documents to which the complainant requested access - the ‘Request for information’, ‘Written notification’ and ‘Intention letter’ - correspond to these formal procedural steps under the Conditionality Regulation and they were thus not drawn up specifically for the purpose of court proceedings.  

33. In accordance with EU case-law[26], the court proceedings exception can be applied to documents that were not drawn up in the context of specific court proceedings but present a relevant link with such ongoing proceedings if their disclosure would seriously compromise the integrity of the court proceedings and the principle of equality of arms. More specifically, the CJEU has stated that this 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”[27].

34. According to the Commission, the information in the requested documents covered by this exception corresponds to the Commission’s assessment of public interest trusts as sent to Hungary and the replies from Hungary on the Commission’s questions. As such, the Ombudsman considers that a relevant link exists with the court proceedings brought by universities/higher education institutions maintained by Hungarian public interest trusts.

35. In order to rely on the court proceedings exception, the Commission must however also demonstrate that the integrity of the court proceedings and the principle of equality of arms would be compromised. In this regard, the Commission argued that disclosing the information redacted in these documents would impede the Commission’s ability to defend itself in the relevant court proceedings by revealing the evolution of its line of reasoning. In addition, disclosing the information would put the applicants in these cases on an equal footing with a Member State, to which the redacted information was addressed, and thus in a more advantageous position for the court proceedings.

36. While the Ombudsman acknowledges that the disclosure of the redacted information would afford the applicants in the court proceedings access to further information, it is not readily clear how the equality of arms and the serenity of the court proceedings would be impeded. Indeed, the requirement of demonstrating an actual and specific harm to court proceedings is not met by reason of the fact that it would place the applicants in these proceedings on an equal footing with a Member State.

37. The fact that the requested documents were exchanged with the Hungarian authorities, via official channels and in accordance with the Conditionality Regulation, means that they are not “purely internal document[s]”[28]. In addition, the Commission did not argue that disclosure would oblige it to defend itself against internally divergent views[29] which would upset the vital balance between the parties to the litigation.

38. The review of the documents by the Ombudsman inquiry team revealed that some of the redacted information is generic and/or factual in nature. Neither do the redacted passages contain divergent views related to a legal issue contested before the Court. The Ombudsman notes that the CJEU has found that disclosure of documents that have a link to ongoing court proceedings but which “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”[30] of Regulation 1049/2001.

39. Overall, the Ombudsman is thus not convinced that disclosure of all of the information redacted on the basis of Article 4(2), second indent of Regulation 1049/2001 would have undermined the integrity of the court proceedings and the principle of equality of arms.  

40. The Ombudsman also notes that - shortly after the Commission’s reply to the complainant’s access request - the EU General Court dismissed[31] the actions of the applicants in so far as they were directed against the Commission. The Commission is thus no longer a defendant in these court proceedings. The Ombudsman considers that the Commission should take this change in circumstances into account when replying to this solution proposal.

On the application of the exception for the protection of an institution’s decision-making process (Article 4(3) Regulation 1049/2001)

41. The remaining redactions in the requested documents concern public procurement, risks of conflict of interest, cooperation with the EU’s anti-fraud body OLAF, anti-corruption investigations and prosecution, and judicial independence. To refuse public access to this information, the Commission invoked the need to protect its ongoing decision-making process under the first subparagraph of Article 4(3) of Regulation 1049/2001. More specifically, the Commission argued that some of the information remains relevant for the entire MFF programming period and that the relevant procedure under the Conditionality Regulation is not yet closed.

42. In accordance with EU case law[32], Article 4(3) distinguishes between a decision-making procedure, which has been closed and which remains open. Thus, according to the first subparagraph of that provision, “any document drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution falls within the scope of the exception for protecting the decision-making process”. The second subparagraph of that provision provides that, “after the decision has been taken, the exception at issue covers only documents containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned”.

43. The Ombudsman cannot agree with the Commission’s view and considers that the decision-making process at hand should be regarded as closed. It is clear that the requested documents relate to the Commission’s proposal for a Council Implementing Decision under the Conditionality Regulation. The Commission finalised its proposal in September 2022 and the relevant Council Implementing Decision was adopted in December 2022 (one year before the complainant’s access request). The fact that the Commission must continue its monitoring of the measures in place and that it could potentially reopen the procedure for issues not yet covered, does not mean that the decision-making process in relation to its proposal (and thus to the requested documents) is ongoing^[33]. As the CJEU has held very recently, “so long as the specific object of a decision to be taken in the future has not yet been defined, any risk that the decision-making process aimed at adopting that decision would be undermined [...] is by definition hypothetical”.[34]

44. As for the Commission’s argument that access to some of the redacted information cannot be granted during the term of the MFF, the Ombudsman takes the view that it would be disproportionate to exclude public scrutiny until 2027 simply because some of the information is relevant for the entire MFF programming period. Indeed, the Commission must show, with tangible evidence, that access is likely to concretely and effectively bring serious harm to the decision-making process in a reasonably foreseeable and non-hypothetical way.[35]

45. The Ombudsman is therefore not convinced of the Commission’s arguments of the risk to its decision-making process. Firstly, the Ombudsman emphasises that the principle of sincere cooperation concerns not only the Commission. Member States also have a duty to sincerely cooperate with the EU institutions.[36] As a consequence, if Hungary wants the measures under the Conditionality Regulation to be lifted, it has to provide the Commission with the information it requires. Accordingly, Hungary has a financial incentive to continue its exchanges with the Commission as well.

46. Secondly, although targeted external pressure may constitute a legitimate ground for refusing access to a document, the reality of such external pressure must be established with certainty and it must be demonstrated that there was a reasonably foreseeable risk that the process would be substantially affected owing to that external pressure[37]. In this regard, the Ombudsman has repeatedly held[38] that a reference to a generic risk of ‘external pressure’ cannot in itself justify non-disclosure. While the Commission provided some additional confidential explanations in this regard, the Ombudsman remains unconvinced that further disclosure would amount to such external pressure that it would undermine the Commission’s ability to apply the conditionality regime.

47. In relation to the Commission’s concern that disclosure would trigger further requests for information and divert resources, the Ombudsman considers that the EU’s financial interests and the rule of law present an area of clear public interest. Therefore, the Commission should ensure that adequate resources are in place to handle such requests, according to the very purpose of Regulation 1049/2001, and that information about its actions is publically available.

48. Regarding issues not covered by the 2022 Council Implementing Decision more specifically, the Ombudsman notes that the Commission’s proposal makes, to a large extent, clear what the Commission’s concerns were regarding the rule of law situation in Hungary. For instance, the Commission’s proposal mentions that “questions were also asked as regards potentially related issues concerning the independence of the judiciary”[39]. The Ombudsman therefore takes the view that further disclosure of the redacted information would not interfere with the Commission’s possibilities to justify how it uses its tools to protect the EU’s financial interests and the rule of law.

49. Thirdly, the Ombudsman acknowledges the Commission’s concern that access to some of the redacted information could lead to the possibility that targeted actors would change their behaviour. However, these concerns appear to apply to a very limited number of redactions only and cannot be interpreted in such a broad way so as to cover all elements that would show the Commission’s ‘strategy’ in dealing with the application of the Conditionality Regulation. For these limited redactions, the Ombudsman finds that the Commission has not sufficiently substantiated how they are covered by Article 4(3) of Regulation 1049/2001 or other relevant exceptions. 

50. In light of the above assessment, the Ombudsman proposes that the Commission review its application of the exceptions under Article 4(2) and Article 4(3) of Regulation 1049/2001 with a view to granting wider access to the documents concerned, in light also of the orders of the General Court on admissibility of the actions against the Commission. If the Commission maintains its refusal to grant full access to the requested documents, it should explain, in more detail, why any remaining redactions are covered by the exceptions invoked.

On the assessment of the existence of an overriding public interest

51. As noted above in paragraphs 39 and 50, the Ombudsman is not convinced that the majority of the redactions are covered by the exceptions invoked. However, consideration of whether there is an overriding public interest in disclosure remains relevant in respect of the remaining redactions.

52. Given the delay in adopting the Commission’s reply, the complainant was not aware that the Commission would rely on exceptions related to the protection of court proceedings and decision-making to justify its refusal to disclose which can only be applied in circumstances where there is no overriding public interest in disclosure. As a result, the complainant did not have the opportunity in their confirmatory application to raise arguments as to the existence of an overriding public interest in disclosure. The Ombudsman therefore invites the Commission to engage with the complainant’s arguments regarding the existence of public interest in disclosure and balance any competing interests to determine if there is an overriding public interest in disclosure.

The proposal for a solution

Based on the above findings, the Ombudsman proposes that the European Commission:

1) review its application of the exceptions under Article 4(2) and Article 4(3) of Regulation 1049/2001 with a view to granting wider access to the documents concerned, in light also of the orders of the General Court on admissibility of the actions against the Commission.

2) explain, in more detail, why any remaining redactions are covered by the exceptions invoked.

3) engage with the complainant’s arguments regarding the existence of public interest in disclosure and balance any competing interests to determine if there is an overriding public interest in disclosure.

The European Commission is invited to inform the Ombudsman by 13 May 2025 of any action it has taken in relation to the above solution proposal.

 

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] Article 2 of the Treaty on European Union.

[3] 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.

[4] For more information, see: https://commission.europa.eu/strategy-and-policy/eu-budget/protection-eu-budget/rule-law-conditionality-regulation_en.

[5] 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, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52022PC0485.

[6] 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.

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

[8] 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; 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.

[9] Article 2(2) of Council Implementing Decision 2022/2506.

[10] Consideration (11) to Council Implementing Decision 2022/2506.

[11] Case T-115/23, application available at https://curia.europa.eu/juris/document/document.jsf?docid=273772&mode=lst&pageIndex=1&dir=&occ=first&part=1&text=&doclang=EN&cid=13176582; Case T-132/23, application available at https://curia.europa.eu/juris/document/document.jsf?docid=275186&mode=req&pageIndex=1&dir=&occ=first&part=1&text=&doclang=EN&cid=13176615; Case T-133/23, application available at https://curia.europa.eu/juris/document/document.jsf;jsessionid=2A7D5D1EB8D80B6CC4A89430F3E259FA?text=&docid=275159&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=268780; Case T‑138/23, application available at https://curia.europa.eu/juris/document/document.jsf?docid=274830&mode=req&pageIndex=1&dir=&occ=first&part=1&text=&doclang=EN&cid=13176662; Case T‑139/23, application available at https://curia.europa.eu/juris/document/document.jsf?text=&docid=275197&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=13461926; Case T‑140/23, application available at https://curia.europa.eu/juris/document/document.jsf?docid=275179&mode=req&pageIndex=1&dir=&occ=first&part=1&text=&doclang=EN&cid=13176698. 

[12] The applicants in cases T-132/23, T-133/23, T‑139/23 and T‑140/23.

[13] Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents: https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32001R1049.

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

[15] Article 4(3), first subparagraph of Regulation 1049/2001.

[16] Available at: https://www.ombudsman.europa.eu/doc/correspondence/199247.

[17] Available at: https://www.ombudsman.europa.eu/doc/inspection-report/199246.

[18] Referring to Judgment of 15 September 2016, Philip Morris v Commission, T‑18/15: 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: https://curia.europa.eu/juris/liste.jsf?language=en&td=ALL&num=T-421/17%20RENV.

[19] In this regard, the Commission representatives referred to a report from the European Court of Auditors mentioning the limited human resources available to apply the Conditionality Regulation (see: https://www.eca.europa.eu/ECAPublications/SR-2024-03/SR-2024-03_EN.pdf).

[20] For example, Annex II to the ‘Written notification’.

[21] In this regard, the complainant referred to the second recommendation of the relevant report from the European Court of Auditors that the Commission had mentioned during the meeting with the Ombudsman inquiry team (see: https://www.eca.europa.eu/ECAPublications/SR-2024-03/SR-2024-03_EN.pdf).

[22] In the meantime, the Commission has decided to maintain all measures under the Conditionality Regulation. See: https://ec.europa.eu/commission/presscorner/detail/en/ip_24_6465.

[23] Article 6(4) of Regulation 2020/2092.

[24] Article 6(1) of Regulation 2020/2092.

[25] Article 6(7) of Regulation 2020/2092.

[26] Judgment of 24 January 2024, Veneziana Energia Risorse Idriche Territorio Ambiente Servizi SpA (Veritas) v Commission, T-602/22, paragraph 58: https://curia.europa.eu/juris/liste.jsf?num=T-602/22&language=EN; Judgment of 6 February 2020, Compañía de Tranvías de la Coruña, SA v Commission, T‑485/18, paragraph 42: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62018TJ0485_RES.

[27] ibid.

[28] 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.

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

[30] 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.

[31] For T-132/23, see: https://curia.europa.eu/juris/document/document.jsf?text=&docid=284519&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=13463181; for T-133/23, see: https://curia.europa.eu/juris/document/document.jsf?mode=req&pageIndex=1&docid=284520&part=1&doclang=EN&text=&dir=&occ=first&cid=13463406; for T‑139/23, see: https://curia.europa.eu/juris/document/document.jsf?text=&docid=284522&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=13463727;  and for T‑140/23, see: https://curia.europa.eu/juris/document/document.jsf?text=&docid=284523&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=13464049. 

[32] Judgment of 21 July 2011, Sweden v MyTravel and Commission, C-506/08 P, paragraph 78: https://curia.europa.eu/juris/liste.jsf?language=en&num=C-506/08.

[33] Judgment of 14 September 2022, Pollinis France v Commission, Joined Cases T-371/20 and T-554/20, paragraphs 55-60: https://curia.europa.eu/juris/document/document.jsf?mode=DOC&pageIndex=0&docid=265442&part=1&doclang=EN&text=&dir=&occ=first&cid=22239 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.

[34] Commission v Pollinis France, paragraph 74.

[35] Judgment of the General Court of 7 June 2011, Toland v Parliament, T-471/08, paragraphs 71 and 78: https://curia.europa.eu/juris/liste.jsf?language=en&num=T-471/08.

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

[37] Judgment of 9 September 2014, MasterCard and Others v Commission, T-516/11, paragraph 71: https://curia.europa.eu/juris/liste.jsf?num=T-516/11&language=EN; Judgment of 20 September 2016, PAN Europe v Commission, T-51/15, paragraphs 30-33: https://curia.europa.eu/juris/liste.jsf?num=T-51/15&language=EN. 

[38] Most recently, see for instance, Decision on how the European Parliament, the Council of the European Union and the European Commission handle requests for public access to legislative documents (OI/4/2023/MIK), paragraphs 47-49, available at: https://www.ombudsman.europa.eu/en/decision/en/196680. See, also, Decision on how the European Investment Bank discloses environmental and social information on projects prior to decisions on funding (2252/2022/OAM), paragraph 26, available at: https://www.ombudsman.europa.eu/en/decision/en/178093; Decision on how the European Border and Coast Guard Agency (Frontex) dealt with a request for public access to documents concerning social media monitoring related to migration routes (344/2023/PVV), paragraph 22: https://www.ombudsman.europa.eu/en/decision/en/192720. 

[39] Paragraph 5 of the explanatory memorandum.