Hungary's Viktor Orban (second right) with EU Commission president Ursula von der Leyen, and Emmanuel Macron of France, Germany's Olaf Scholz, Italy's Georgia Meloni, and EU Council president Charles Michel, ahead of a EU summit (Photo: European Commission)
On 13 December 2023, the European Commission decided to unblock €10.2bn of EU money earmarked for Hungary, until then frozen due to the non-fulfilment of a funding criteria on judicial independence. Next day, EU leaders agreed to open accession talks with Ukraine after Viktor Orbán dropped his veto by simply walking out of the conference room.
While around €21bn of Hungary’s EU funds remains blocked due to other rule of law deficiencies, the commission’s decision has drawn heavy criticism, not least because of its timing.
The European Parliament publicly challenged the positive assessment of judicial independence in Hungary, and during a committee hearing of the responsible commissioners, MEPs denounced what they dubbed a “backroom deal” or a “rush to give Orbán the €10.2bn ” before the leaders’ summit.
The commission hasn’t done much to dispel these concerns.
Its December decision to release the funds was not published at the time. Since then, without any fanfare, it has uploaded the document in an online register after downgrading its secrecy status. The published text provides some justification by listing the relevant Hungarian legislative reforms, but falls short of giving a full picture of the commission’s considerations.
Further details can lie hidden in an exchange of letters between the commission and the Hungarian government that preceded the unblocking decision. It was in last July that Hungary informed the commission that it considered the judicial independence criteria fulfilled.
The commission then asked for more information by letters sent in September and November, and the Hungarian government replied in October and (by three separate letters) in December.
These letters were never made public. After the first press reports about a possible deal appeared last year, I submitted a request for access to documents to the Commission, asking for the disclosure of correspondence up to that point.
With its reply of 30 January, the Commission refused to grant access to the two letters sent by Hungary in July and October, as well as to its own letters to the Hungarian government. It only disclosed some annexes that contain already public information, mostly legal texts adopted by the Hungarian Parliament.
That’s bad news for transparency, but even more alarming is how the commission justified its refusal.
Don’t ask why
Regarding the letters originating from Hungary, the commission consulted the Hungarian government. The Orbán administration opposed disclosure, arguing that the letters fell under an exception in the EU’s access to documents regulation, as granting access to them would undermine the commission’s monitoring of the continued fulfilment of the judicial independence criteria. The commission accepted this argument without further comments.
You’ve read that right. The commission (the party that is supposed to do the monitoring) let the Hungarian government (the party being monitored) decide whether the publicity of the letters would undermine the monitoring process. That’s despite the principle, established by EU courts, that member states have no unconditional right of veto over access to documents they’ve sent to EU institutions, and the validity of the reasons given by member states for opposing disclosure can be reviewed by the institutions.
It gets worse with the commission’s own letters.
The commission based the refusal to disclose them on the exception that protects its decision-making process. There is an obvious legal error in this argument, as the “decision-making exception” only covers documents that contain “opinions for internal use”. The letters in question are manifestly not internal documents but documents sent to the Hungarian government.
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Misapplication of the law aside, what is most astonishing is why the commission thinks that disclosure of the letters would undermine its decision-making process. It acknowledges that the decision on Hungary has already been taken, but says a similar procedure about judicial independence is ongoing concerning Poland, and that process would be undermined by the publication of the documents.
More precisely, in the commission’s view, the letters sent to Hungary “can reveal the strategy of the commission during the still ongoing negotiations” with the Polish government and can have a negative impact on those negotiations. Public interest in the disclosure of the letters is “negated by the risk of such disclosure helping a member state (i.e. Poland) obtain EU funds without implementing necessary reforms to its judicial system.”
In short, the Commission is accusing itself of the very same thing its critics use as a line of attack: that it has a “negotiating strategy” for assessing compliance with the judicial independence criteria, and there is a risk it could be tricked or coaxed into paying out EU money without the necessary reforms.
But does the commission really believe what it’s saying? My guess is, in reality, it’s more confident in its ability to assess judicial independence and doesn’t think that publication of some letters would undermine its monitoring of the situation in Hungary.
It is rather the result of an almost reflex-like insistence on the culture of confidentiality that the commission hastens to make use of whatever pretext it can find to avoid disclosing documents it deems politically sensitive. Even if it has to use arguments that erode its own credibility.
The EU’s access to documents regulation, adopted in 2001, recognised a direct link between the principle of openness and the legitimacy of EU institutions. It’s about time that the spirit of the law is reflected in practice.
Transparency around the commission’s discussions with the Hungarian government would not only allow a more informed debate on the rule of law but would also help preserving citizens’ trust in the EU’s capacity to protect taxpayers’ money from misuse.
Source: euobserver.com
