Case T‑104/22

Hungary

v

European Commission

(Ninth Chamber, Extended Composition) of 10 July 2024

(Access to documents – Regulation (EC) No 1049/2001 – Documents relating to the correspondence addressed to the Commission by the Hungarian authorities concerning a draft call for proposals co-financed by the European Union within the framework of European structural and investment funds – Documents originating from a Member State – Objection by the Member State – Objection relating to the protection of the decision-making process – Concept of ‘document relating to a matter where the decision has not been taken by the institution’ – Obligation to state reasons – Sincere cooperation)

1. EU Institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Refusal to grant access – Obligation to state reasons – Scope – Decision on a confirmatory application for access departing from the response to an initial application for access – Breach of the obligation to state reasons – None

   (Art. 296, second para., TFEU; Charter of Fundamental Rights of the European Union, Art. 41(2)(c); European Parliament and Council Regulation No 1049/2001, Art. 4(3))

   (see paragraphs 24, 27, 30, 35-37)

2. EU Institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Documents originating from a Member State – Option for the Member State to request the institution not to disclose documents – Duty of sincere cooperation between the institution and the Member State

   (Art. 4(3) TEU; European Parliament and Council Regulation No 1049/2001, Art. 4(1) to (3) and (5))

   (see paragraphs 41-43)

3. EU Institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Documents originating from a Member State – Option for the Member State to request the institution not to disclose documents – Procedural implications – Obligation to state reasons borne by the Member State

   (European Parliament and Council Regulation No 1049/2001, Art. 4(5))

   (see paragraphs 44-46, 49)

4. Economic, social and territorial cohesion – Structural interventions – European Union funding – European structural and investment funds – Shared management – Adoption of a decision relating to the call for proposals – Exclusive responsibility of the Member States

   (European Parliament and Council Regulations No 1306/2013, Arts 4(4), 34(3)(d), 73-75, 110(2)(a) and 125(3); 2018/1046, Art. 63(1))

   (see paragraphs 66, 75, 76)

5. EU Institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Protection of the decision-making process – Scope – Documents relating to the correspondence addressed to the European Commission by the national authorities concerning a draft call for proposals co-financed by the European structural and investment funds – Not included

   (European Parliament and Council Regulation No 1049/2001, Art. 4(3), first subpara.)

   (see paragraphs 92, 93, 100, 101)

6. EU Institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Protection of the decision-making process – Concept – Scope – Decision-making process of the national managing authorities – Not included

   (European Parliament and Council Regulation No 1049/2001, Art. 4(3), first subpara.)

   (see paragraphs 110-113, 126, 127)

7. EU Institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Protection of the decision-making process – Conditions – Concrete, actual, and serious undermining of that process – Absence in the event of disclosure of the documents relating to the correspondence addressed to the European Commission by the national authorities concerning a draft call for proposals co-financed by the European structural and investment funds

   (European Parliament and Council Regulation No 1049/2001, Art. 4(3), first subpara.)

   (see paragraphs 130-133, 136, 137, 140)

8. Judicial proceedings – Application initiating the proceedings – Formal requirements – Identification of the subject matter of the dispute – Summary of the pleas in law relied on – Abstract statement – Inadmissible

   (Statute of the Court of Justice, Art. 21; Rules of Procedure of the General Court, Art. 76(d))

   (see paragraph 145)

Résumé

In dismissing Hungary’s application for annulment of the decision of the European Commission granting a third-party applicant access to the correspondence addressed to the Commission by the Hungarian authorities concerning a draft call for proposals financed by EU funds (‘the contested decision’), the General Court clarifies the scope of the exception relating to the protection of the decision-making process provided for in Regulation No 1049/2001, ( 1 ) notably with regard to the precise definition of the concept of ‘the institution’s decision-making process’. Furthermore, this – relatively rare – dispute, in which a Member State objects to the disclosure by an EU institution of documents originating from that Member State’s own authorities provides the General Court with the opportunity to rule on the novel question whether that exception may be relied on by a Member State in order to object to the disclosure of documents relating to a call for proposals drawn up by a national authority responsible for managing the European Structural and Investment funds (‘the ESI Funds’) in the joint management of the budget of the European Union.

In 2021, an application for access was addressed to the Commission, relating to the official correspondence between it and the Hungarian authorities concerning a call for proposals coming under an operational programme funded by ESI Funds ( 2 ) pursuant to Regulation No 1303/2013. ( 3 ) On being consulted pursuant to Regulation No 1049/2001, ( 4 ) the Hungarian authorities objected to the disclosure of the documents originating from them, on the basis of the exception relating to the protection of the decision-making process. They observed that, since the decision-making process regarding the call for proposals at issue was still ongoing, disclosure of those documents might have seriously undermined the principles of equal treatment, non-discrimination and transparency.

The Commission initially granted the third-party applicant access to 6 of the 11 documents identified as being covered by the application for disclosure, but refused to grant it access to the documents originating from the Hungarian authorities. Following a confirmatory application and a fresh consultation of the Hungarian authorities, however, and in spite of their manifest objection, the Commission granted access to the documents originating from the Hungarian authorities, including the newly identified documents.

Findings of the Court

Adjudicating on the plea whereby Hungary takes issue with the Commission for not having applied, in this case, the exception relating to the protection of the decision-making process, the Court finds, in the first place, that no Commission decision-making process was ongoing at the time when the contested decision was adopted.

In that regard, it notes that, while the ESI Funds come under shared management, the provisions of Regulation No 1303/2013 ( 5 ) relating to the criteria to be observed with a view to the selection of the operations to be financed by those Funds show that the calls for proposals are within the exclusive responsibility of the Member States. Thus, Regulation No 1303/2013 does not confer any particular competence on the Commission in the process of finalising a call for proposals governed by that regulation.

Furthermore, following a literal, contextual and teleological interpretation of the first subparagraph of Article 4(3) of Regulation No 1049/2001, the Court observes that the application of the exception provided for in that provision is subject to the identification of a process following which an EU institution is authorised by EU law to adopt a specific decision. The mere fact that the Commission participates in a procedure governed by the budgetary rules of shared management does not prove that that procedure comes under its decision-making process. The delegation by the Commission to the national managing authorities, which characterises shared management, has no impact on the respective competences of the Commission and the Member States which are clearly defined by the provisions of Regulation No 1303/2013; consequently, its decision-making process and those of the Member States must not be confused.

The Court therefore concludes that, in this case, the Commission was not required to adopt a decision. Thus, the documents which it received cannot be regarded as relating to an EU institution’s ongoing decision-making process. Consequently, they cannot be regarded as ‘relat[ing] to a matter where the decision has not been taken by [an EU institution]’. ( 6 )

In the second place, the Court rejects Hungary’s argument relating to the applicability of the exception based on the first subparagraph of Article 4(3) of Regulation No 1049/2001 to the national managing authorities’ decision-making process.

In that regard, it observes that that provision is not intended to protect the decision-making processes of the Member States or of legal persons other than the EU institutions, as the actual wording of that provision refers solely to documents relating to ‘a matter where the decision has not been taken by the institution’. To interpret that exception as also protecting the decision-making process of the national managing authorities would amount to reintroducing in a roundabout way the authorship rule, abolished by the EU legislature, for any document affecting decision-making by a Member State. Such an interpretation would not be compatible with either the object or the purpose of Article 15 TFEU or Regulation No 1049/2001, which is to grant the widest possible public access to institution documents in all areas of EU activity. In addition, any interpretation of that provision going beyond its actual wording would lead to an extensive interpretation of the exception provided for in that provision that would make it impossible to delimit the scope of the ground of refusal in question.

( 1 ) Article 4(3) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).

( 2 ) Call for proposals ‘EFOP 2.2.5’, entitled ‘Improving the transition from institutional care to community-based services – Replacement of institutional accommodation by 2023’.

( 3 ) Regulation (EU) No 1303/2013 of the European Parliament and of the Council of 17 December 2013 laying down common provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund, the European Agricultural Fund for Rural Development and the European Maritime and Fisheries Fund and laying down general provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund and the European Maritime and Fisheries Fund and repealing Council Regulation (EC) No 1083/2006 (OJ 2013 L 347, p. 320, corrigendum OJ 2016 L 200, p. 140).

( 4 ) Article 4(4) and (5) of Regulation No 1049/2001.

( 5 ) Article 110(2)(a) and Article 125(3) of Regulation No 1303/2013.

( 6 ) Within the meaning of the first subparagraph of Article 4(3) of Regulation No 1049/2001.