# C_2019328EN.01006201.xml

| 30.9.2019 | EN | Official Journal of the European Union | C 328/62 |
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30.9.2019

EN

Official Journal of the European Union

C 328/62

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Action brought on 19 July 2019 — Homoki v Commission

(Case T-517/19)

(2019/C 328/71)

Language of the case: Hungarian

Parties

Applicant: Andrea Homoki (Gyál, Hungary) (represented by: T. Hüttl, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

| — | in accordance with Article 264 of the consolidated versions of the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU), (1) annul Decision No OCM(2019) 7991-04/04/2019 (olaf.c.4[2019] 8720) adopted on 4 April 2019 by the European Anti-Fraud Office (OLAF) in Case No OF/2015/0034/B4, as well as Decision No OCM(2019) 11506-22/05/2019 (olaf.c.4[2019] 12610) adopted on 22 May 2019 in the same case, confirming, pursuant to the provisions of the second paragraph of Article 264 TFEU, those parts of the contested decisions the purpose of which is to protect the identity of informants and the confidentiality of the OLAF internal memorandum and the procedural working documents; |
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in accordance with Article 264 of the consolidated versions of the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU), (1) annul Decision No OCM(2019) 7991-04/04/2019 (olaf.c.4[2019] 8720) adopted on 4 April 2019 by the European Anti-Fraud Office (OLAF) in Case No OF/2015/0034/B4, as well as Decision No OCM(2019) 11506-22/05/2019 (olaf.c.4[2019] 12610) adopted on 22 May 2019 in the same case, confirming, pursuant to the provisions of the second paragraph of Article 264 TFEU, those parts of the contested decisions the purpose of which is to protect the identity of informants and the confidentiality of the OLAF internal memorandum and the procedural working documents;

| — | order the defendant to pay the applicant’s costs in accordance with Article 134 of the Rules of Procedure of the General Court. |
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order the defendant to pay the applicant’s costs in accordance with Article 134 of the Rules of Procedure of the General Court.

Pleas in law and main arguments

In the first contested decision, OLAF refused the applicant access to the OLAF report on Elios Innovatív Zrt.’s investment in street lighting (OLAF case No OF/2015/0034/B4), while in the second contested decision, it rejected the confirmatory application submitted by the applicant.

In support of the action for annulment of the contested decisions, the applicant relies on eight pleas in law.

| 1. | First plea in law, alleging failure to protect fundamental rights






  — | Knowledge of the requested document forms part of the applicant’s right to freedom of expression and information under Article 11 of the Charter of Fundamental Rights. The applicant submits that by refusing to disclose the document requested, the defendant failed to comply with the fundamental rights criterion laid down by the Charter of Fundamental Rights, and also failed to take fundamental rights into account. Instead it disproportionately restricted the applicant’s right to freedom of expression and information. |
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1.

First plea in law, alleging failure to protect fundamental rights

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Knowledge of the requested document forms part of the applicant’s right to freedom of expression and information under Article 11 of the Charter of Fundamental Rights. The applicant submits that by refusing to disclose the document requested, the defendant failed to comply with the fundamental rights criterion laid down by the Charter of Fundamental Rights, and also failed to take fundamental rights into account. Instead it disproportionately restricted the applicant’s right to freedom of expression and information.

| 2. | Second plea in law, based on the rebuttal of the general presumption prohibiting access to documents






  — | The applicant submits that the general presumption prohibiting access to OLAF documents is unlawful. According to the applicant, the fundamental right of access to documents cannot be negated in such a way that the body applying the law may exclude from the general rule of publicity all documents drawn up by one of the institutions (in the present case, OLAF) without analysing the content of the data requested. |
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2.

Second plea in law, based on the rebuttal of the general presumption prohibiting access to documents

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The applicant submits that the general presumption prohibiting access to OLAF documents is unlawful. According to the applicant, the fundamental right of access to documents cannot be negated in such a way that the body applying the law may exclude from the general rule of publicity all documents drawn up by one of the institutions (in the present case, OLAF) without analysing the content of the data requested.

| 3. | Third plea in law, contesting the duty of confidentiality






  — | The applicant complains that OLAF refused to grant full access to the document on the ground of the duty of confidentiality. As a result, the restriction which, on the basis of that duty, allows the entire file of the OLAF investigation to remain exempt from disclosure is disproportionate, thus completely negating the right of EU citizens to access the documents of the EU institutions. |
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3.

Third plea in law, contesting the duty of confidentiality

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The applicant complains that OLAF refused to grant full access to the document on the ground of the duty of confidentiality. As a result, the restriction which, on the basis of that duty, allows the entire file of the OLAF investigation to remain exempt from disclosure is disproportionate, thus completely negating the right of EU citizens to access the documents of the EU institutions.

| 4. | Fourth plea in law, based on the right of access






  — | The applicant submits that the situation in which the body applying the law only grants access to specific documents if the applicant establishes an overriding reason in the public interest against the presumption prohibiting access to documents is incompatible with the general rule of publicity. The applicant takes the view that the body processing the data must demonstrate that there is an exception which justifies limiting disclosure. |
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4.

Fourth plea in law, based on the right of access

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The applicant submits that the situation in which the body applying the law only grants access to specific documents if the applicant establishes an overriding reason in the public interest against the presumption prohibiting access to documents is incompatible with the general rule of publicity. The applicant takes the view that the body processing the data must demonstrate that there is an exception which justifies limiting disclosure.

| 5. | Fifth plea in law, alleging failure to state reasons relating to external pressure and the protection of the decision-making process






  — | The applicant submits that, so far as concerns exercising the right of access, the defendant failed to conduct an individual assessment or to state reasons on the substance as to exactly which part of the data requested was necessary for the adoption of the decision in progress. |
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5.

Fifth plea in law, alleging failure to state reasons relating to external pressure and the protection of the decision-making process

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The applicant submits that, so far as concerns exercising the right of access, the defendant failed to conduct an individual assessment or to state reasons on the substance as to exactly which part of the data requested was necessary for the adoption of the decision in progress.

| 6. | Sixth plea in law, alleging failure to state reasons in relation to the protection of commercial interests






  — | The applicant submits that the defendant failed to justify its finding that the grant of access would jeopardise the commercial interests of natural or legal persons. An unjustified and hypothetical risk cannot negate the fundamental right to knowledge and disclosure of data of public interest, from which the person requesting the data benefits. |
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6.

Sixth plea in law, alleging failure to state reasons in relation to the protection of commercial interests

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The applicant submits that the defendant failed to justify its finding that the grant of access would jeopardise the commercial interests of natural or legal persons. An unjustified and hypothetical risk cannot negate the fundamental right to knowledge and disclosure of data of public interest, from which the person requesting the data benefits.

| 7. | Seventh plea in law, alleging that the transmission of personal data is justified on established public-interest grounds






  — | The applicant submits that the defendant’s argument relating to the protection of personal data is unlawful in that, in providing a public service and using public money, the protection of personal data is to be applied subject to restrictions. Moreover, the defendant failed to inform the applicant that the latter ought to have justified the possibility of having knowledge of personal data on public-interest grounds. |
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7.

Seventh plea in law, alleging that the transmission of personal data is justified on established public-interest grounds

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The applicant submits that the defendant’s argument relating to the protection of personal data is unlawful in that, in providing a public service and using public money, the protection of personal data is to be applied subject to restrictions. Moreover, the defendant failed to inform the applicant that the latter ought to have justified the possibility of having knowledge of personal data on public-interest grounds.

| 8. | Eighth plea in law, alleging that there is an overriding public interest in the disclosure of the documents requested






  — | The applicant submits that there is an overriding public interest in the disclosure of the document requested. The applicant bases that overriding public interest on the fact that it cannot be expected that the Hungarian authorities will conduct an examination on the substance as regards the serious abuses found by OLAF. In the applicant’s view, only disclosure can serve as an effective tool in that respect. |
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8.

Eighth plea in law, alleging that there is an overriding public interest in the disclosure of the documents requested

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The applicant submits that there is an overriding public interest in the disclosure of the document requested. The applicant bases that overriding public interest on the fact that it cannot be expected that the Hungarian authorities will conduct an examination on the substance as regards the serious abuses found by OLAF. In the applicant’s view, only disclosure can serve as an effective tool in that respect.

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(1)  OJ 2010 C 83, p. 1.

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