Provisional text
JUDGMENT OF THE GENERAL COURT (Ninth Chamber, Extended Composition)
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 – Exception 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 )
In Case T‑104/22,
Hungary, represented by M. Fehér and G. Koós, acting as Agents,
applicant,
v
European Commission, represented by C. Ehrbar, A. Spina and A. Tokár, acting as Agents,
defendant,
THE GENERAL COURT (Ninth Chamber, Extended Composition),
composed of L. Truchot, President, H. Kanninen, E. Buttigieg, M. Sampol Pucurull (Rapporteur) and T. Perišin, Judges,
Registrar: A. Juhász-Tóth, Administrator,
having regard to the written part of the procedure,
having regard to the order of 8 June 2022, Hungary v Commission (T‑104/22 R, not published, EU:T:2022:351), whereby the President of the General Court allowed the application for interim measures and reserved the costs,
further to the hearing on 11 October 2023,
gives the present
Judgment
1 By its action under Article 263 TFEU, Hungary seeks annulment of the decision of the European Commission of 14 December 2021 granting a third party applicant, pursuant to 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), access to the correspondence addressed to the Commission by the Hungarian authorities concerning a draft call for proposals (‘the contested decision’).
Background to the dispute
2 The Commission adopted, within the framework of the programming of the European Structural and Investment Funds (‘the ESI Funds’) for the period from 1 January 2014 to 31 December 2023, the operational programme relating to the development of human resources for the deinstitutionalisation of persons with disabilities currently living in institutions in Hungary (EFOP) on a proposal by Hungary, in accordance with 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).
3 In the context of the abovementioned operational programme, the managing authority designated by the Hungarian authorities to implement that programme prepared a draft call for proposals with the code number ‘EFOP 2.2.5’, entitled ‘Improving the transition from institutional care to community-based services – Replacement of institutional accommodation by 2023’ (‘Call for proposals EFOP 2.2.5’).
4 On 30 April 2021, an application for access, given the reference GESTDEM 2021/2808, was submitted to the Commission, covering all official correspondence between the Commission and the Hungarian authorities relating to Call for proposals EFOP 2.2.5, in application of Regulation No 1049/2001.
5 Of the 11 documents identified by the Commission as coming within the scope covered by the application for access, five were from the Hungarian authorities, namely the following documents:
– an email from the Hungarian authorities of 11 March 2020, reference Ares (2021) 3279157, containing two annexes;
– a letter from the Hungarian authorities to the Commission of 19 June 2020, reference Ares (2020) 3193726;
– a letter from the Hungarian authorities to the Commission of 6 August 2020, reference Ares (2020) 4141947;
– a letter from the Hungarian authorities to the Commission of 5 January 2021, reference Ares (2021) 401802;
– a letter from the Hungarian authorities to the Commission of 14 April 2021, reference Ares (2021) 2528382.
6 In the context of the consultation procedure provided for in Article 4(4) and (5) of Regulation No 1049/2001, the Hungarian authorities informed the Commission, by letter of 28 May 2021, that they objected to access being given to the documents originating from them, on the basis of the exception provided for in Article 4(3) of Regulation No 1049/2001. The Hungarian authorities observed that, in so far as the decision-making process concerning Call for proposals EFOP 2.2.5 was still ongoing, disclosure of those documents at that stage would seriously undermine the principles of equal treatment, non-discrimination and transparency, since potential beneficiaries would have been able to access information likely to confer an unfair competitive advantage on them.
7 On 16 June 2021, the Commission granted the third party applicant, subject to the protection of personal data, access to six of the 11 documents identified as coming within the scope covered by the application for disclosure, but refused to grant it access to the five documents originating from the Hungarian authorities in application of the exception provided for in Article 4(3) of Regulation No 1049/2001 (‘the initial decision’).
8 On 6 July 2021, the third party applicant submitted a confirmatory application to the Commission, in accordance with Article 7(2) of Regulation No 1049/2001 (‘the confirmatory application’).
9 On 13 October 2021, following the confirmatory application, the Secretary-General of the Commission again consulted the Hungarian authorities and informed them that, following examination of the applicability of all the exceptions set out in Article 4 of Regulation No 1049/2001, access to the documents listed in paragraph 5 above could in his view be refused only on the basis of the protection of personal data.
10 When the confirmatory application was examined, additional documents were identified by the Commission as being covered by the application for access, including four documents originating from the Hungarian authorities (together with the documents identified in paragraph 5 above, ‘the documents at issue’), namely the following documents:
– an email from the Hungarian authorities of 10 March 2020, reference Ares (2020) 1532153;
– an email from the Hungarian authorities of 30 April 2020, reference Ares (2020) 2352996, containing one annex;
– an email from the Hungarian authorities of 21 October 2020, reference Ares (2020) 5761728, containing two annexes;
– an email from the Hungarian authorities of 25 November 2020, reference Ares (2020) 7120859, containing one annex.
11 By email of 28 October 2021, the Hungarian authorities reiterated their position that no access to the documents originating from them should be granted on the basis of the exception provided for in Article 4(3) of Regulation No 1049/2001.
12 By the contested decision, the Commission ruled on the confirmatory application of the third party applicant and granted the latter access to the documents at issue, in a form from which personal data had been redacted, in spite of the Hungarian authorities’ objection. In that regard, the Commission assessed the arguments put forward by the Hungarian authorities and concluded that those arguments did not prima face demonstrate that the exception provided for in Article 4(3) of Regulation No 1049/2001 was applicable.
13 By letter of 15 December 2021, the Commission informed Hungary of the adoption of the contested decision.
Forms of order sought
14 Hungary claims that the Court should:
– annul the contested decision;
– order the Commission to pay the costs.
15 The Commission contends that the Court should:
– dismiss the action;
– order Hungary to pay the costs.
Law
16 In support of its action, Hungary formally relied on two pleas in law.
17 In the first place, it should be observed that Hungary refers in its written pleadings to Article 4(3) of Regulation No 1049/2001, without indicating whether the reference is to the first or the second subparagraph of that paragraph or to paragraph 3 in its entirety. However, Hungary’s explanations show that it does not refer to paragraph 3 in its entirety, as those explanations relate in reality only to an alleged infringement of the first subparagraph of Article 4(3) of Regulation No 1049/2001.
18 In the second place, it should be borne in mind that, according to the case-law, the Court must interpret the pleas in law by reference to their substance rather than their characterisation and characterise accordingly the pleas in law and the arguments in the application (see judgment of 5 September 2014, Éditions Odile Jacob v Commission, T‑471/11, EU:T:2014:739, paragraph 51 and the case-law cited).
19 In that regard, the two pleas on which Hungary formally relies constitute, in reality, two parts of the same plea, alleging infringement of the first subparagraph of Article 4(3) of Regulation No 1049/2001. Furthermore, as is apparent upon examination of the substance of Hungary’s written pleadings, in the context of the first plea, Hungary relies on an insufficient statement of reasons in the contested decision and a breach of the principle of sincere cooperation. In addition, Hungary maintains that, if the Court were to find that the first subparagraph of Article 4(3) of Regulation No 1049/2001 does not apply in the present case, it would be necessary to apply the third indent of paragraph 2 of that article.
20 In those circumstances, the Court considers that Hungary puts forward, in essence, four pleas, alleging, first, an insufficient statement of reasons in the contested decision; second, breach of the principle of sincere cooperation; third, infringement of the first subparagraph of Article 4(3) of Regulation No 1049/2001; and, fourth, infringement of the third indent of Article 4(2) of Regulation No 1049/2001.
The first plea, alleging an insufficient statement of reasons in the contested decision
21 Hungary maintains that the grounds of the contested decision do not permit it to assess, first, the reasons why the exception provided for in the first subparagraph of Article 4(3) of Regulation No 1049/2001 is not applicable in the present case and, second, whether the Commission genuinely examined whether access to the documents at issue was likely to undermine specifically and actually the decision-making process.
22 Furthermore, Hungary takes issue with the Commission for not having sufficiently stated the reasons why the contested decision departs from its previous practice in taking decisions.
23 The Commission disputes Hungary’s arguments.
24 It must be borne in mind that, as is apparent from consistent case-law, the statement of reasons required by the second paragraph of Article 296 TFEU and by Article 41(2)(c) of the Charter of Fundamental Rights of the European Union (‘the Charter’) must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure, in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of the abovementioned provisions must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, to that effect, judgments of 1 February 2007, Sison v Council, C‑266/05 P, EU:C:2007:75, paragraph 80 and the case-law cited, and of 3 May 2018, Malta v Commission, T‑653/16, EU:T:2018:241, paragraph 53 and the case-law cited).
25 In particular, it must be stated that where an institution decides to grant a third party applicant access to a document originating from a Member State notwithstanding the objection put forward by that State in accordance with Article 4(5) of Regulation No 1049/2001, the reasons on which that decision is based may be apparent both from the disclosure decision addressed to the third party applicant and from the act whereby the institution concerned informs that Member State of the adoption of that decision, since such an act forms part of the context in which the disclosure decision was adopted.
26 In the present case, in the first place, it is apparent from the contested decision that the Secretary-General of the Commission considered whether Hungary had based its objection on the material exceptions provided for in Article 4(1) to (3) of Regulation No 1049/2001 and whether it had properly stated the reasons for its position in that regard. In the second place, the Commission took note of the Hungarian authorities’ objection to disclosure of the documents at issue on the basis of the exception provided for in Article 4(3) of Regulation No 1049/2001 and of the reasons on which they relied in order to object to that disclosure. However, the Commission concluded that the explanations provided by the Hungarian authorities did not warrant the application of the exception on which they had relied. The Commission thus decided to grant the third party applicant access to the documents at issue, in a form from which personal data had been redacted.
27 Admittedly, the contested decision does not contain an exhaustive statement of the reasons why the Commission considered that Article 4(3) of Regulation No 1049/2001 was not applicable. However, since the decision was addressed to the third party applicant and since its purpose was not to refuse access to the documents at issue, the Commission was not required to provide an exhaustive explanation in that decision of the reasons why it considered that Hungary’s request that those documents not be disclosed was not well founded and, in particular, that Article 4(3) of Regulation No 1049/2001 was not applicable in the present case.
28 Furthermore, the letter of 15 December 2021, which, as indicated in paragraph 25 above, is part of the context of the contested decision, contains a more detailed account of the reasons why the Commission considered that the exception referred to in Article 4(3) of Regulation No 1049/2001 was not applicable to the documents at issue. To that end, first of all, the Commission observed that it followed from the first subparagraph of Article 4(3) of that regulation that the documents that might be covered by that provision should relate to a matter where the decision had not yet been taken by an institution. Next, the Commission stated that the documents at issue related to Call for proposals EFOP 2.2.5, which was financed within the framework of shared management, and that, in accordance with Article 34(3)(d) of Regulation No 1303/2013, the national managing authority was responsible for preparing and publishing calls for proposals. Last, the Commission stated that Regulation No 1303/2013 did not provide for any decision-taking by the Commission in the context of the preparation and approval of a call for proposals governed by Regulation No 1303/2013.
29 In addition, the Commission stated that, according to consistent case-law, the application of the exception provided for in Article 4(3) of Regulation No 1049/2001 assumed that it was demonstrated that access to the documents at issue was likely to undermine specifically and actually the decision-making process of the institution and that that likelihood that the process would be undermined was reasonably foreseeable and not purely hypothetical. However, in the present case, access to the documents at issue could not, in the Commission’s view, specifically and actually undermine any decision-making process. To that end, the Commission stated that the Hungarian authorities had accepted, in the context of another application for access, given the references GESTDEM 2020/1513, also relating to Call for proposals EFOP 2.2.5 and covering documents similar to those disclosure of which was sought, that it granted access to those documents. Furthermore, the Commission observed that some of the requested documents, in particular the draft call for proposals itself, were public.
30 Consequently, such information allows Hungary to understand the reasons why the Commission decided to grant the third party applicant access to the documents at issue and the competent court to exercise its power of review.
31 Hungary also takes issue with the Commission for having departed, without any particular reason, from its previous practice in taking decisions. In particular, Hungary observes that, both in dealing with the application for access bearing the reference GESTDEM 2020/1513 and in the initial decision, the Commission had refused to grant access to the documents originating from the Hungarian authorities on the basis of the first subparagraph of Article 4(3) of Regulation No 1049/2001.
32 It is true, in that regard, that, according to settled case-law, although a Commission decision which fits into a well-established line of decisions may be reasoned in a summary manner, by, inter alia, a reference to those decisions, the Commission must, if a decision goes appreciably further than the previous decisions, provide a fuller account of its reasoning (see judgment of 10 July 2019, Commission v Icap and Others, C‑39/18 P, EU:C:2019:584, paragraph 28 and the case-law cited; see also, to that effect, judgment of 3 May 2018, Malta v Commission, T‑653/16, EU:T:2018:241, paragraph 54).
33 However, it must be observed, that, in order to establish the existence of such a practice in adopting decisions, Hungary merely refers, first, to the initial decision and, second, to the earlier application for access, with reference GESTDEM 2020/1513, while observing that the Commission had initially refused to grant the third party applicant access to the requested documents following the objection of the Hungarian authorities on the basis of the first subparagraph of Article 4(3) of Regulation No 1049/2001. However, a mere reference to the initial decision and to the earlier application for access cannot establish the existence of a consistent practice in taking decisions in dealing with applications for access relating to Call for proposals EFOP 2.2.5.
34 Furthermore, it must be observed that, admittedly, in the initial decision, the Commission’s Directorate-General for Regional and Urban Policy refused to grant access to the documents originating from the Hungarian authorities on the basis of Article 4(3) of Regulation No 1049/2001.
35 Nevertheless, it should be borne in mind that, under Article 8 of Regulation No 1049/2001, the response to an initial application for access, within the meaning of Article 7 of that regulation, is only an initial statement of position, conferring on the party requesting access the right to request the Secretary-General of the Commission to reconsider the position in question (see judgment of 28 March 2017, Deutsche Telekom v Commission, T‑210/15, EU:T:2017:224, paragraph 80 and the case-law cited).
36 Consequently, only the measure adopted by the Secretary-General of the Commission, which is a decision and which replaces in full the previous statement of position, is capable of producing legal effects such as to affect the interests of the party requesting access or, as in this case, those of the Member State from which the documents originate and which objects to their disclosure (see, to that effect, judgment of 28 March 2017, Deutsche Telekom v Commission, T‑210/15, EU:T:2017:224, paragraph 81 and the case-law cited).
37 Thus, the Commission was not in any way required to explain the reasons why, in the contested decision which was adopted in response to the confirmatory application, it departed from the initial decision. The Commission was required only to state the reasons for the solution which it reached.
38 Consequently, the first plea must be rejected as unfounded.
The second plea, alleging breach of the principle of sincere cooperation
39 The second plea contains two complaints. Hungary claims, first, that the Commission did not give the Hungarian authorities the opportunity to provide a fuller explanation of their reasoning or to reassess it and, second, that the Commission did not examine of its own motion the possibility of applying the exception based on the protection of ‘the financial, monetary or economic policy of the Community or a Member State’ as a public interest, within the meaning of Article 4(1)(a) of Regulation No 1049/2001, or the exception relating to the confidentiality of ‘the purposes of inspections, investigations and audits’ within the meaning of Article 4(2) of that regulation.
40 The Commission disputes Hungary’s arguments.
41 As a preliminary point, it should be borne in mind that Article 4(5) of Regulation No 1049/2001, which provides that a Member State may request the institution not to disclose a document originating from that Member State without its prior consent, gives the Member State concerned the opportunity to participate in the taking of the decision which the institution is required to adopt, and to that end establishes a decision-making process for determining whether the substantive exceptions listed in Article 4(1) to (3) of that regulation preclude access being given to the document in question. However, Article 4(5) of Regulation No 1049/2001 does not confer on that Member State a general and unconditional right of veto enabling it to oppose, in a discretionary manner, disclosure of documents originating from it and held by an institution (see, to that effect, judgment of 18 July 2017, Commission v Breyer, C‑213/15 P, EU:C:2017:563, paragraph 43).
42 Thus, where the implementation of rules of EU law is entrusted jointly to the institution and the Member State which has made use of the possibility granted by Article 4(5) of Regulation No 1049/2001, and such implementation consequently depends on the dialogue to be carried on between them, they are obliged in accordance with the duty of sincere cooperation set out in Article 4(3) TEU to act and cooperate in such a way that those rules are effectively applied (see, to that effect, judgment of 18 December 2007, Sweden v Commission, C‑64/05 P, EU:C:2007:802, paragraph 85).
43 First of all, it follows that an institution which receives a request for access to a document originating from a Member State and that Member State must, once that request has been notified by the institution to that Member State, commence without delay a genuine dialogue concerning the possible application of the exceptions provided for in Article 4(1) to (3) of Regulation No 1049/2001 (see, to that effect, judgment of 18 December 2007, Sweden v Commission, C‑64/05 P, EU:C:2007:802, paragraph 86).
44 Next, if the Member State concerned, following such dialogue, objects to disclosure of the document in question, it is obliged to state reasons for that objection with reference to those exceptions (judgment of 18 December 2007, Sweden v Commission, C‑64/05 P, EU:C:2007:802, paragraph 87).
45 The institution cannot accept a Member State’s objection to disclosure of a document originating from that State if the objection gives no reasons at all or if the reasons are not put forward in terms of the exceptions listed in Article 4(1) to (3) of Regulation No 1049/2001. Where, in spite of an express request by the institution to the Member State to that effect, the State still fails to provide the institution with such reasons, the institution must, if for its part it considers that none of those exceptions applies, give access to the document that has been asked for (judgment of 18 December 2007, Sweden v Commission, C‑64/05 P, EU:C:2007:802, paragraph 88).
46 Last, the sincere dialogue that characterises the decision-making process laid down in Article 4(5) of Regulation No 1049/2001 also entails an obligation for the institution concerned to allow the Member State to set out its reasons more clearly or to reassess those reasons so that they may be regarded, prima facie, as defensible (see, to that effect, judgment of 5 April 2017, France v Commission, T‑344/15, EU:T:2017:250, paragraph 48 and the case-law cited).
47 In the present case, as regards the first complaint, as is apparent from the letter of 13 October 2021, sent by the Commission to the Hungarian authorities, the Commission, following the confirmatory application of the third party applicant, commenced without delay a dialogue with the Hungarian authorities concerning the possible application of the exceptions provided for in Article 4(1) to (3) of Regulation No 1049/2001. In that respect, first of all, it informed those authorities that, at first sight, having examined the applicability of the exceptions listed in Article 4 of Regulation No 1049/2001, it considered that access to the documents referred to in paragraph 5 above could be refused only on the basis of the protection of personal data. Next, taking account of the preliminary assessment carried out, it asked the Hungarian authorities to specify which of the exceptions listed in Article 4 of that regulation would in their view justify access to the abovementioned documents being refused. Last, it asked the Hungarian authorities to state the reasons for any objection by reference to those exceptions.
48 It follows from the foregoing, first, that the Commission informed the Hungarian authorities that it considered that the exception provided for in Article 4(3) of Regulation No 1049/2001 was not prima face applicable and, second, that it gave those authorities the opportunity to challenge that analysis or to submit alternative reasoning, by inviting them to produce detailed reasoned justifications.
49 Hungary cannot therefore assert that the Commission did not give it the opportunity to provide fuller details of its reasons or to rely on other possible grounds of refusal before adopting the contested decision.
50 As regards the second complaint, it should be observed that, as is apparent from the letter of 13 October 2021, the Commission informed the Hungarian authorities that it had examined the applicability of all the exceptions listed in Article 4 of Regulation No 1049/2001 and that it concluded that access could be refused only on the basis of the protection of personal data.
51 Furthermore, it should be stated that Hungary did not base its objection to disclosure of the documents at issue on Article 4(1) or (2) of Regulation No 1049/2001.
52 Hungary cannot therefore take issue with the Commission for not having explained, in the contested decision, the reasons why it considered that the exceptions based on the protection of ‘the financial, monetary or economic policy of the Community or a Member State’ and ‘the purpose of inspections, investigations and audit’ were not applicable in the present case.
53 Consequently, the second plea must be dismissed as unfounded.
The third plea, alleging infringement of the first subparagraph of Article 4(3) of Regulation No 1049/2001
54 The third plea is divided into three parts.
55 In the first part, Hungary submits, in essence, that the first subparagraph of Article 4(3) of Regulation No 1049/2001 is applicable in the present case, in so far as a Commission decision-making process is ongoing. In the alternative, in the context of the second part, Hungary maintains that, even in the absence of a Commission decision-making process, the first subparagraph of Article 4(3) of Regulation No 1049/2001 should be interpreted as also protecting the process of the national managing authority responsible for finalising a draft call for proposals governed by Regulation No 1303/2013, such as Call for proposals EFOP 2.2.5. Last, in the context of the third part, Hungary maintains that disclosure of the documents at issue actually, seriously and specifically undermines the ongoing decision-making process linked with the finalisation of Call for proposals EFOP 2.2.5.
The first part of the third plea, alleging the existing of an ongoing Commission decision-making process
56 The first part is made up of two complaints.
57 In support of the first complaint, Hungary maintains that, although it is for the national managing authority to adopt the decision on the finalisation of Call for proposals EFOP 2.2.5, the fact that that decision is adopted in the context of shared management of the ESI Funds cannot be disregarded. To that end, Hungary claims that, taking account of the Commission’s audit powers and of the possibility for it to make financial corrections, it is in the interest of the national managing authority to follow the guidance which it receives from the Commission. Thus, in an area affecting EU financial resources and in which the Commission ensures the lawful and proper use of the ESI Funds, the decision is admittedly taken by the national managing authority, but in the context defined by the institution and under its subsequent control, which shows that the Commission participates in the decision-making process.
58 In support of the second complaint, Hungary claims that the Commission has prerogatives relating to the amendment of the operational programmes governed by Regulation No 1303/2013. Hungary maintains that it wishes to submit a duly reasoned request to amend the operational programme, which might affect the allocation of resources linked with Call for proposals EFOP 2.2.5. Hungary disputes, moreover, the fact that the Commission’s decision-making process for the approval of a request to amend an operational programme takes place only after the formal request to amend that programme has been submitted. In Hungary’s submission, it is from the time when a dialogue is initiated between the Member State and the Commission for the purpose of shaping the future amendment that the Commission’s decision-making process within the meaning of Article 4(3) of Regulation No 1049/2001 begins.
59 The Commission disputes Hungary’s arguments.
60 As a preliminary point, it should be borne in mind that, in accordance with recital 1 thereof, Regulation No 1049/2001 reflects the intention expressed in the second paragraph of Article 1 TEU to mark a new stage in the process of creating an ‘ever closer union among the peoples of Europe’, in which decisions are taken as openly as possible and as closely as possible to the citizen (see judgment of 22 January 2020, MSD Animal Health Innovation and Intervet international v EMA, C‑178/18 P, EU:C:2020:24, paragraph 48 and the case-law cited).
61 That core EU objective is also reflected in Article 15(1) TFEU, which provides that the institutions, bodies, offices and agencies of the European Union are to conduct their work as openly as possible, that principle of openness also being expressed in Article 10(3) TEU and in Article 298(1) TFEU, and in the enshrining of the right of access to documents in Article 42 of the Charter (see judgment of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraph 74 and the case-law cited).
62 To that end, the purpose of Regulation No 1049/2001 is, as indicated in recital 4 and Article 4(1), to confer on the public as wide a right of access as possible to documents of the institutions, subject to a system of exceptions based on reasons of public or private interest, which, departing from the principle laid down in that article, must be interpreted and applied strictly (see judgment of 7 September 2023, Breyer v REA, C‑135/22 P, EU:C:2023:640, paragraph 70 and the case-law cited).
63 Among the exceptions to that access is that provided for in the first subparagraph of Article 4(3) of Regulation No 1049/2001, from which it is clear that access to a document of an EU institution which was drawn up for internal use or received by that institution, which relates to a matter where the decision has not been taken by the institution, is to be refused if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure, those conditions being cumulative.
64 In the present case, the documents at issue relate to the correspondence which the Hungarian authorities addressed to the Commission concerning the finalisation of Call for proposals EFOP 2.2.5. They relate to an exchange of internal views on the draft call for proposals which, on the date of adoption of the contested decision, had not yet been definitively published.
65 It is thus appropriate to analyse the institutional context defined by Regulation No 1303/2013, in order to determine whether, in the context of the finalisation of Call for proposals EFOP 2.2.5, the Commission was required to adopt a decision.
66 As a preliminary point, it should be observed that the ESI Funds come under shared management.
67 In that respect, it follows from Article 63(1) of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1), that ‘where the Commission implements the budget under shared management, tasks relating to budget implementation shall be delegated to Member States’.
68 Furthermore, according to Article 73 of Regulation No 1303/2013, ‘in accordance with the principle of shared management, Member States and the Commission shall be responsible for the management and control of programmes in accordance with their respective responsibilities laid down in this Regulation and in the fund-specific rules’.
69 In particular, Article 74 of Regulation No 1303/2013 refers to the responsibilities of Member States under shared management. In that regard, it follows from Article 74(1) of that regulation that ‘Member States shall fulfil the management, control and audit obligations, and assume the resulting responsibilities, which are laid down in the rules on shared management set out in the Financial Regulation and the Fund-specific rules’.
70 Furthermore, Article 75 of Regulation No 1303/2013 determines Commission powers and responsibilities. In that respect, if follows from paragraph 1 of that article that the Commission is to satisfy itself that the Member States have set up management and control systems and that those systems function effectively during the implementation of programmes.
71 As regards Member State responsibilities, it should be observed that Article 4(4) of Regulation No 1303/2013 entrusts Member States, at the appropriate territorial level, in accordance with their institutional, legal and financial framework, and the bodies designated by them for that purpose, with responsibility for preparing and implementing programmes and carrying out their tasks, in partnership with the relevant partners referred to in Article 5 of that regulation.
72 In that context, it follows from Article 34(3)(d) of Regulation No 1303/2013 that the preparation and publication of calls for proposals come within the exclusive responsibility of the Member States.
73 Furthermore, Article 125(3) of Regulation No 1303/2013 provides that, as regards the selection of operations, the national managing authority is to be responsible for drawing up and, once approved, applying appropriate selection procedures and criteria for operations financed by the ESI Funds.
74 As is apparent from Article 110(2)(a) of Regulation No 1303/2013, the approval mentioned in Article 125(3) of that regulation refers to approval of the methodology and criteria used for selection of operations by the monitoring committee set up by the Member State in accordance with Articles 47 and 48 of that regulation and not to approval by the Commission.
75 The abovementioned provisions show that calls for proposals governed by Regulation No 1303/2013, which define the criteria to be observed with a view to selecting the operations to be financed by the ESI Funds, come within the exclusive responsibility of the Member States.
76 It follows that Regulation No 1303/2013 does not confer any particular competence on the Commission in the process for the finalisation of a call for proposals governed by that regulation and that the Commission was therefore correct to consider that, prima facie, it was not required to take a decision relating to Call for proposals EFOP 2.2.5.
77 However, the Court must examine the complaints on which Hungary relies in support of the present part of the plea.
– The first complaint, alleging that the first subparagraph of Article 4(3) of Regulation No 1049/2001 is applicable because of the Commission’s influence on the finalisation of the draft Call for proposals EFOP 2.2.5
78 Hungary maintains that the fact that the Commission may, in the context of the decision-making process relating to Call for proposals EFOP 2.2.5, make observations or, subsequently, monitor compliance with its observations, and apply financial corrections in the event of non-compliance, to a large extent influences the decision of the national managing authority concerning the finalisation of Call for proposals EFOP 2.2.5. The Commission’s influence, in the context of shared management, must be understood as meaning that a decision originating from a national managing authority, although not formally a Commission decision, forms an integral part of the Commission’s decision-making process. Thus, in Hungary’s submission, the consultations and internal deliberations between the national management authority and the Commission, in the context of Call for proposals EFOP 2.2.5, must be protected under the first subparagraph of Article 4(3) of Regulation No 1049/2001, even if the Commission is not required to adopt a decision in the strict sense of the word.
79 Hungary’s argument raises the question of the scope of the exception provided for in the first subparagraph of Article 4(3) of Regulation No 1049/2001. More precisely, it is for the Court to determine whether, in the context of shared management, when the Commission initiates a dialogue with the Hungarian authorities, concerning the finalisation of a call for proposals financed by the ESI Funds, the Commission’s decision-making process also includes that dialogue, even if the dialogue does not necessarily culminate in the adoption of a decision by the Commission.
80 In accordance with settled case-law, in interpreting a provision of EU law, it is necessary to consider not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part (see judgment of 13 July 2023, G GmbH, C‑134/22, EU:C:2023:567, paragraph 25 and the case-law cited).
81 As regards the wording of the first subparagraph of Article 4(3) of Regulation No 1049/2001, it should be borne in mind that it covers the documents relating to a matter where the decision has not been taken by an institution, which clearly refers to the concept of ‘decision-making process of the institution which is ongoing’ at the time when the request for access is made.
82 To that end, the Court of Justice has held, in essence, that it was possible to refuse access to a document on the basis of the first subparagraph of Article 4(3) of Regulation No 1049/2001 only in so far as the decision-making process relates to taking a decision (judgment of 17 December 2020, De Masi and Varoufakis v ECB, C‑342/19 P, EU:C:2020:1035, paragraph 73).
83 As regards the contextual interpretation, it should be observed that Article 4(3) of Regulation No 1049/2001 draws a clear distinction precisely by reference to whether a procedure has been closed or not. 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 (judgment of 21 July 2011, Sweden v MyTravel and Commission, C‑506/08 P, EU:C:2011:496, paragraph 78).
84 Thus, the protection afforded by the first subparagraph of Article 4(3) of Regulation No 1049/2001 comes to an end when a decision is taken.
85 As regards the teleological interpretation, as is apparent from paragraph 62 above, any interpretation of the article in question that goes beyond the actual wording would amount to extending the scope of the exception provided for in the first subparagraph of Article 4(3) of Regulation No 1049/2001.
86 Thus, it follows from paragraphs 81 to 85 above that the application of the exception provided for in the first subparagraph of Article 4(3) of Regulation No 1049/2001 is conditional on the identification of a process after which an EU institution is authorised by EU law to adopt a specific decision.
87 In the present case, first, it should be borne in mind that, as is apparent from paragraph 76 above, the Commission was not required to take a specific decision in relation to the finalisation of Call for proposals EFOP 2.2.5.
88 Second, although Hungary maintains that, in the context of the process for the finalisation of the call for proposals, consultations or internal deliberations take place between the national managing authority and the Commission, it does not maintain that the Commission is required to adopt a decision.
89 Third, although the Commission was able to make observations concerning the draft Call for proposals EFOP 2.2.5, in particular as regards its compliance with the operational programme of which that project formed part and in order to ensure that the ESI Funds were used legally and regularly by the Hungarian authorities, it does not follow that those observations characterise the existence of a decision-making process specific to the Commission and permit the call for proposals to be treated as a Commission decision. Those observations do not in any way prejudge decisions that the Commission might take, such as the decision to make a financial correction or the decision to suspend payments associated with the call for proposals.
90 In addition, where the Commission expresses doubts or concerns about the regularity of a draft call for proposals governed by Regulation No 1303/2013, it should be noted that the national managing authority may decide to implement the amendments proposed by the Commission, thus ensuring that the project will continue to be co-financed by the European Union, without any Commission decision being necessary. Furthermore, the national managing authority may also decide not to amend the call for proposals and finance the project solely on the basis of funds committed by the Member State. In addition, where a draft call for proposals is incompatible with the operational programme approved by the Commission, it is for the national authorities to draw the inferences in the light of national law, taking account of EU law.
91 In that respect, it must be observed that there is nothing to prevent the Member State concerned by a Commission decision to interrupt the payment period, to suspend the payments associated with a call for proposals governed by Regulation No 1303/2013 or to annul in whole or in part the EU contribution to an operational programme, from deciding to meet from its own funds the part from which EU finance has been withdrawn in order to finance the projects awarded under the call for proposals. In that regard, it should be observed, in particular, that, under Article 4(1) of Regulation No 1303/2013, the ESI funds are designed to supplement corresponding national, regional or local actions or to contribute to them, while recital 87 of that regulation also states that support from the ESI Funds should not replace public or equivalent structural expenditure by Member States (see order of 2 September 2020, ENIL Brussels Office and Others v Commission, T‑613/19, not published, EU:T:2020:382, paragraph 36 and the case-law cited).
92 Therefore, the mere fact that the Commission participates in a procedure governed by the budgetary rules of shared participation does not show that that procedure forms part of the decision-making process of that institution within the meaning of the first subparagraph of Article 4(3) of Regulation No 1049/2001. As is apparent from paragraphs 68 to 74 above, 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, and its and their decision-making processes must not therefore be confused.
93 It follows from the foregoing that, in the context of the process for the finalisation of Call for proposals EFOP 2.2.5, the Commission was not required to adopt a decision. Thus, the documents received by the Commission during the consultations and the internal deliberations that took place between the national managing authority and the Commission in the context of such a process cannot be considered to relate to an ongoing decision-making process of an EU institution. Consequently, they cannot be regarded as ‘relat[ing] to a matter where the decision has not been taken by the [EU] institution’, within the meaning of the first subparagraph of Article 4(3) of Regulation No 1049/2001.
94 A solution in the contrary sense would conflict with the requirement referred to in paragraph 62 above that the first subparagraph of Article 4(3) of Regulation No 1049/2001 must be interpreted strictly.
95 The first complaint in the first part of the third plea must therefore be dismissed as unfounded.
– The second complaint, alleging that the first subparagraph of Article 4(3) of Regulation No 1049/2001 is applicable owing to the Commission’s competence in relation to the amendment of operational programmes governed by Regulation No 1303/2013
96 In support of the second complaint, Hungary observes that, although it is for the national managing authority to adopt the decision relating to the finalisation of Call for proposals EFOP 2.2.5, the Commission is required, pursuant to Article 30(2) of Regulation No 1303/2013, to take a decision on the amendment of operational programmes.
97 In that regard, it follows from Article 30(2) of Regulation No 1303/2013 that the Commission’s role is to ensure that the amendments of the operational programmes proposed by the Member States comply with EU legal provisions and requirements. In that context, the Commission is to assess the proposed amendments submitted by the Member State concerned and may make recommendations and observations on those proposals before adopting a final decision on the approval of the amendments. Thus, if a proposal to amend an operational programme is deemed to be consistent with EU requirements, the Commission is to give its formal approval.
98 Accordingly, in the event of an amendment of the operational programme of which Call for proposals EFOP 2.2.5 forms part, it might be considered that the Commission was required to adopt a decision and that a decision-making process of the Commission was thus ongoing.
99 However, it must be observed that, at the time of the adoption of the contested decision, the Hungarian authorities had not submitted a request for amendment of the operational programme of which the draft Call for proposals EFOP 2.2.5 formed part.
100 Furthermore, the documents at issue did not concern a hypothetical request for amendment of the operational programme that Hungary might submit, but related to an exchange of views between the Commission and the national managing authority on the draft Call for proposals EFOP 2.2.5. Nor has Hungary explained how access to the correspondence between the Commission and the national managing authority relating to the finalisation of Call for proposals EFOP 2.2.5 might have undermined the decision-making process relating to a different procedure, namely a hypothetical request for amendment of the operational programme.
101 It follows that at the time of the adoption of the contested decision, no decision-making process of the Commission was ongoing and that, consequently, Hungary could not properly base its objection to disclosure of the documents at issue on the exception provided for in the first subparagraph of Article 4(3) of Regulation No 1049/2001.
102 In the light of the foregoing, the second complaint in the first part of the third plea must be rejected as unfounded and, accordingly, the first part of the third plea must be dismissed in its entirety.
The second part of the third plea, alleging that the first subparagraph of Article 4(3) of Regulation No 1049/2001 is applicable to the decision-making process of the national managing authorities
103 In the alternative, Hungary maintains that, if the Court should determine that in the present case it was not the Commission, but the national managing authority, that was authorised to take a decision, by publishing a call for proposals, the decision-making process of the national managing authority should then also enjoy the protection afforded by Article 4(3) of Regulation No 1049/2001.
104 Hungary observes that, admittedly, in accordance with its wording, the first subparagraph of Article 4(3) of Regulation No 1049/2001 protects only the decision-making process of the institutions, but that, however, in the light of the specificity of the present case, the scope of that provision should not be limited solely to the EU institutions.
105 In the first place, it claims that the EU agencies are authorised to rely on that exception in order to protect their own decision-making processes.
106 In the second place, Hungary observes, in essence, that a restrictive interpretation of the first subparagraph of Article 4(3) of Regulation No 1049/2001 would have the effect that the possibility for the Member States to request, in accordance with Article 4(5) thereof, that disclosure of documents be refused, having regard to the reasons set out in Article 4(1) to (3) of that regulation, would, in practice, be rendered meaningless. In that respect, it observes that the Member States could invoke only the exceptions provided for in Article 4(1) and (2) of that regulation and would therefore be unable to protect the decision-making process of their own authorities, which would undermine that process and thus give rise, in an area affecting the financial resources of the European Union, to unjustified discrimination based on the person who takes the decision.
107 Furthermore, the legitimate interests of the Member State, whose national law would permit access to the requested documents to be refused, would not be protected, as EU law would make it possible to circumvent the national rule by approaching the EU institution directly. Hungary observes that that would undermine the Member States’ confidence in the institutions and reduce the efficiency of the process of cooperation between Member States and the Commission.
108 The Commission disputes Hungary’s arguments.
109 In that regard, it should be borne in mind that, in accordance with Article 1(a) of Regulation No 1049/2001, in that regulation the word ‘institution’ designates the Parliament, the Council or the Commission, while Article 3(b) of that regulation designates, by the expression ‘third party’, any natural or legal person, or any entity outside the institution concerned, including the Member States and non-Community institutions.
110 In the present case, in the first place, it follows from the first subparagraph of Article 4(3) of Regulation No 1049/2001 that that article is not intended to protect the decision-making processes of the Member States or of legal persons other than the EU institutions. The actual wording of that provision refers solely to documents relating to ‘a matter where the decision has not been taken by the institution’.
111 In the second place, it should be borne in mind that the EU legislature abolished the authorship rule that applied as EU law stood before the adoption of Regulation No 1049/2001. Such a rule meant that, where the author of a document held by an institution was a natural or legal person, a Member State, another Community institution or body, or any other national or international organisation, the request for access to the document had to be made directly to the author of the document (see, to that effect, judgment of 18 December 2007, Sweden v Commission, C‑64/05 P, EU:C:2007:802, paragraph 56).
112 Thus, to interpret the exception provided for in the first subparagraph of Article 4(3) of Regulation No 1049/2001 as also protecting the decision-making process of the national managing authorities would be tantamount to reintroducing that authorship rule, at least in part and by the back door, for any document affecting the adoption of a decision by a Member State. Such an interpretation would not be compatible with either the object or the purpose of Article 15 TFEU and of Regulation No 1049/2001, which is to grant the widest possible public access to the documents of the institutions in all spheres of EU activity.
113 In the third place, as is apparent from paragraph 62 above, any interpretation of the first subparagraph of Article 4(3) of Regulation No 1049/2001 going beyond the actual wording would amount to extending the scope of the exception provided for in that provision and would therefore constitute an extensive interpretation of that provision that would make it impossible to delimit the scope of the ground of refusal in question.
114 Those findings cannot be called in question by Hungary’s arguments.
115 In the first place, Hungary maintains that a literal interpretation of Article 4(3) of Regulation No 1049/2001 would not permit the EU agencies to invoke that article in order to protect their own decision-making processes in so far as the special provisions that allow Regulation No 1049/2001 to be extended to the agencies concern only the scope, in the strict sense, of that regulation, but do not alter its content, including Article 4 of that regulation relating to the exceptions to disclosure of documents. Hungary observes that, in the case that gave rise to the judgment of 5 February 2018, MSD Animal Health Innovation and Intervet international v EMA (T‑729/15, EU:T:2018:67), neither the General Court nor the Court of Justice, which upheld that judgment on appeal, disputed the application of Article 4(3) of Regulation No 1049/2001 to the decision-making process of an agency.
116 In that regard, it must be observed that the application of Regulation No 1049/2001 was extended to the EU agencies, under a special provision in their founding regulations. In particular, as regards the European Medicines Agency (EMA), Article 73 of Regulation (EC) No 726/2004 of the European Parliament and of the Council of 31 March 2004 laying down Community procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing a European Medicines Agency (OJ 2004 L 136, p. 1) expressly provides that Regulation No 1049/2001 is to apply to documents held by the EMA and that its Management Board is to adopt the arrangements for implementing that regulation.
117 Thus, in application of the special provisions in their founding regulations, the agencies are entitled to apply all the exceptions provided for in Article 4 of Regulation No 1049/2001 in the same way as the institutions do for all the documents which they hold.
118 It follows that, as the Commission correctly submits, the application of Regulation No 1049/2001 to the decision-making processes of the EMA and the other EU agencies is the consequence of clear and unequivocal rules of EU secondary law and is not the result of a broad interpretation, by the General Court, of the concept of ‘institution’ within the meaning of that regulation.
119 In the second place, Hungary observes that a restrictive interpretation of Article 4(3) of Regulation No 1049/2001 would result in the possibility for the Member States to request, in accordance with Article 4(5) of that regulation, that disclosure of documents be refused, having regard to the reasons set out in Article 4(3), being, in practice, rendered meaningless.
120 In that regard, it is true that the case-law has accepted that a Member State could invoke Article 4(3) of Regulation No 1049/2001 (judgments of 18 December 2007, Sweden v Commission, C‑64/05 P, EU:C:2007:802, paragraphs 76, 81, 83 and 93, and of 21 June 2012, IFAW Internationaler Tierschutz-Fonds v Commission, C‑135/11 P, EU:C:2012:376, paragraphs 62 to 66).
121 However, the first subparagraph of Article 4(3) of Regulation No 1049/2001 applies to documents originating from the Member States received by an EU institution which relate to an ongoing decision-making process of that institution. That article therefore does not apply to documents which relate to the decision-making process of a Member State.
122 In the third place, the arguments whereby Hungary alleges that the decision-making processes of the national managing authorities and the protection of the legitimate interests of the Member States, which are protected by national law, would be undermined cannot succeed either.
123 Article 2(3) of Regulation No 1049/2001 provides that that regulation is to apply to all documents held by an EU institution, that is to say, documents drawn up or received by it and in its possession, in all areas of activity of the European Union. It therefore follows from that article that, in principle, subject to documents defined as sensitive, which are subject to special treatment in accordance with paragraph 5 of that article, a document transmitted by a national authority to an EU institution is, from that time, subject exclusively to EU law and under the responsibility of that institution in the context of an application for access to the document made to that institution.
124 Furthermore, it should be observed that the legitimate interests of the Member States may also be protected by the application of the exceptions provided for in Article 4(1) and (2) of Regulation No 1049/2001.
125 In the fourth place, Hungary observes that the failure to protect the decision-making process of the national managing authorities would undermine Member States’ confidence in the institutions, with the consequence that the effectiveness of the process of cooperation between the Member States and the Commission would be reduced.
126 It should be observed that a mere reference to a likelihood of negative repercussions on communications between the Member States and the institutions and to the reduction of the efficiency of the cooperation process between the parties does not suffice to substantiate the conclusion that the decision-making process of the national managing authorities should also be protected by the exception provided for in the first subparagraph of Article 4(3) of Regulation No 1049/2001. That would amount to giving the Member States discretionary power in that matter or would, at least, make the policy of access to documents implemented by that regulation conditional upon the relevant national policies. That would not be compatible either with the system of access to documents established by Regulation No 1049/2001 or with the Member States’ obligation of sincere cooperation under Article 4(3) TEU (see, to that effect, judgment of 24 May 2011, Batchelor v Commission, T‑250/08, EU:T:2011:236, paragraph 80 and the case-law cited).
127 It follows that the exception based on the first subparagraph of Article 4(3) of Regulation No 1049/2001 cannot be interpreted as also protecting the decision-making process of a national managing authority. The second part of the third plea must therefore be rejected as unfounded.
The third part of the third plea, alleging that the decision-making process linked with the finalisation of the draft Call for proposals EFOP 2.2.5 would be seriously, effectively and specifically undermined
128 In support of this part of the plea, Hungary maintains that to make public in its entirely the correspondence between the Hungarian authorities and the Commission relating to Call for proposals EFOP 2.2.5 might undermine the finalisation of that call for proposals, in so far as disclosure of the documents at issue could afford certain organisations privileged information that would make them better able to prepare their candidatures for the call for proposals, to the disadvantage of other competing organisations which would not have the same level of information.
129 In the circumstances of the present case, the Court considers it appropriate to examine, in the interest of completeness, whether the condition referred to in paragraph 63 above and based on the serious undermining of the decision-making process is satisfied and thus to analyse the grounds put forward by Hungary to justify the application of the exemption provided for in the first subparagraph of Article 4(3) of Regulation No 1049/2001, on the assumption that that provision is applicable in the present case.
130 In that regard, the mere fact that a document concerns an interest protected by an exception to the right of access provided for in Article 4 of Regulation No 1049/2001 is not sufficient to justify the application of that provision (see judgment of 3 July 2014, Council v in’t Veld, C‑350/12 P, EU:C:2014:2039, paragraph 51 and the case-law cited).
131 More precisely, the application of the exception provided for in the first subparagraph of Article 4(3) of Regulation No 1049/2001 requires it to be established that access to the documents requested was likely to undermine specifically and actually the protection of the institution’s decision-making process, and that the likelihood of that interest being undermined was reasonably foreseeable and not purely hypothetical (see judgment of 22 March 2018, De Capitani v Parliament, T‑540/15, EU:T:2018:167, paragraph 63 and the case-law cited).
132 Furthermore, in order to be covered by the exception provided for in the first subparagraph of Article 4(3) of Regulation No 1049/2001, the decision-making process must be seriously undermined. That is the case, in particular, where disclosure of the document in question has a substantial impact on the decision-making process. The assessment of that serious nature depends on all of the circumstances of the case including, inter alia, the negative effects of such disclosure on the decision-making process relied on by the institution (see judgment of 7 June 2011, Toland v Parliament, T‑471/08, EU:T:2011:252, paragraph 71 and the case-law cited).
133 In the present case, the grounds put forward by Hungary do not permit it to be determined how disclosure of the documents at issue might actually, seriously and effectively affect the Commission’s decision-making process.
134 Hungary merely maintains that disclosure of the documents at issue could seriously undermine the principles of equal treatment, non-discrimination and transparency, in so far as potential beneficiaries of Call for proposals EFOP 2.2.5 might obtain information that would procure an unfair competitive advantage for them.
135 It must be observed that Hungary’s assertions are not in any way substantiated by detailed argument, or by evidence capable of establishing that there would be a real likelihood of an unfair competitive advantage if the documents at issue had been disclosed before the national managing authority definitively adopted Call for proposals EFOP 2.2.5.
136 Furthermore, as is apparent from the case-law, the mere reference to a likelihood of negative repercussions linked to access to internal documents and the possibility that interested parties may influence the procedure do not suffice to prove that disclosure of those documents would seriously undermine the decision-making process of the institution concerned (judgment of 13 July 2017, Saint-Gobain Glass Deutschland v Commission, C‑60/15 P, EU:C:2017:540, paragraph 83).
137 Nor has Hungary provided detailed information to challenge the Commission’s analysis that disclosure of the documents at issue could not, on the date of adoption of the contested decision, undermine the ongoing decision-making process linked with the finalisation of Call for proposals EFOP 2.2.5, in so far as on that date the content of that call for proposals was publicly available online.
138 It follows from the case-law that, in its assessment of a likelihood that disclosure of a document will undermine an interest protected by Article 4 of Regulation No 1049/2001, the Court may take into consideration the fact that the main content of the document disclosure of which is requested was already made public before the decision refusing or allowing access to that document was adopted (see, to that effect, judgment of 3 July 2014, Council v in’t Veld, C‑350/12 P, EU:C:2014:2039, paragraph 60).
139 Furthermore, the Commission observes that the documents originating from the Commission were communicated in their entirety to the third party applicant. Thus, the third party applicant has precise knowledge of the context and the subject matter of the discussions between the Commission and the Hungarian authorities relating to the draft Call for proposals EFOP 2.2.5.
140 Therefore the obligation laid down in the case-law to assess the first subparagraph of Article 4(3) of Regulation No 1049/2001 strictly leads to the finding that Hungary has not established that disclosure of the documents at issue would have resulted, on the date on which disclosure was requested, in the decision-making process linked with the finalisation of Call for proposals EFOP 2.2.5 being actually and seriously undermined.
141 The Commission was therefore correct to find that, in the particular circumstances of the present case, the ground put forward by Hungary, relating to the risk of an unfair competitive advantage, was unfounded.
142 Consequently, the third part of the third plea must be dismissed as unfounded and the third plea must therefore be dismissed in its entirety.
The fourth plea, alleging infringement of the third indent of Article 4(2) of Regulation No 1049/2001
143 In support of this plea, Hungary claims that, if the Court should find that the Commission’s shared management activity does not form part of its decision-making process, there is no doubt that that activity should be considered to come within the scope of the investigations referred to in the third indent of Article 4(2) of Regulation No 1049/2001.
144 It must be pointed out that Hungary does not in any way substantiate its assertion that the Commission’s shared management activity should be considered to come within the scope of the investigations referred to in the third indent of Article 4(2) of Regulation No 1049/2001.
145 It should be borne in mind that, under Article 76(d) of the Rules of Procedure of the General Court, the application is to contain the subject matter of the proceedings, the pleas in law and arguments relied on and a summary of those pleas in law. In particular, every application must explain the substance of the plea on which the action is based, and a mere abstract statement does not therefore satisfy the requirements of the Rules of Procedure. Similar requirements apply where an argument is relied on in support of a plea (see, to that effect, judgment of 10 March 2021, Ayuntamiento de Quart de Poblet v Commission, T‑539/18, not published, EU:T:2021:123, paragraph 102 and the case-law cited).
146 Thus, in so far as Hungary’s argument that the third indent of Article 4(2) of Regulation No 1049/2001 should apply in the present case does not satisfy the requirements referred to in Article 76(d) of the Rules of Procedure, it must be rejected as inadmissible.
147 Consequently, the fourth plea must be rejected and the action must therefore be dismissed in its entirety.
Costs
148 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
149 In the present case, as Hungary has been unsuccessful, it must be ordered to pay the costs, including those relating to the interlocutory proceedings.
On those grounds,
THE GENERAL COURT (Ninth Chamber, Extended Composition)
hereby:
1. Dismisses the action;
2. Orders Hungary to pay the costs, including those relating to the interlocutory proceedings.
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Truchot |
Kanninen |
Buttigieg |
|
Sampol Pucurull |
Perišin |
Delivered in open court in Luxembourg on 10 July 2024.
[Signatures]
* Language of the case: Hungarian.