Opinion of the Advocate General — ECLI:EU:C:2026:385
Date: 2026-05-07
Language of the case: Hungarian

Summary of the arguments of the parties 15. In essence, Hungary claims that the General Court erred in law in holding, in paragraph 27 of the judgment under appeal, that, since the decision at issue, which granted the third party’s application for access to the documents at issue, was not addressed to Hungary and 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 not to disclose those documents was unfounded. 16. The protection of the interests of Member States is of fundamental importance. It is therefore unacceptable to consider that the only act against which a Member State may bring an action, where an EU institution intends to disclose documents originating from that Member State in spite of its objection, does not have to set out all the reasons as to why that institution did not take that objection into account. A decision which grants access to documents despite the objection of a Member State and which does not set out the reasons for rejecting that objection places neither the Member State concerned in a position to be able effectively to exercise its right to bring an action nor the EU Courts in a position to exercise their power of review. 17. Contrary to what the General Court held in paragraph 28 of the judgment under appeal, the statement of reasons for the decision at issue cannot be supplemented by the context in which it was adopted, as set forth in the letter of 15 December 2021. 18. The Commission contends that the first part of the ground of appeal is ineffective, because Hungary does not challenge paragraphs 24 and 25 of the judgment under appeal. In any event, the General Court did not in any way err in its reasoning as to whether the statement of reasons for the decision at issue was sufficient. (b) Assessment 19. It must be noted at the outset that the General Court correctly recalled, in paragraph 24 of the judgment under appeal, the settled case-law on the requirements to be satisfied by the statement of reasons, according to which those requirements 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. In the same paragraph, the General Court also correctly found that the question whether the statement of reasons meets the requirements of the second paragraph of Article 296 TFEU and Article 41(2)(c) of the Charter of Fundamental Rights of the European Union 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. 20. First, as regards Hungary’s argument that the Commission should have provided an exhaustive statement of reasons, it is based on a manifestly erroneous reading of that case-law, which is nevertheless not disputed. (9) It is common ground that the author of the act is not required to provide an exhaustive statement of reasons and that compliance with the obligation to state reasons may also be assessed in the light of the circumstances and the context. 21. Second, as regards the account taken of the letter of 15 December 2021 as forming part of the context capable of clarifying the statement of reasons in the decision at issue, I consider that the reference to the context appeared all the more necessary since Hungary was not an addressee of the decision at issue. 22. It is important to recall that the facts of the present case arise in the context of a triangular relationship involving a third-party applicant applying to an EU institution for access to documents originating from a Member State, which must then be consulted. (10) Once the institution adopts its position, it is to communicate that position to the third-party applicant, which is the addressee of the disclosure decision, as is clear, moreover, from paragraphs 25 and 27 of the judgment under appeal. 23. The decision at issue, which Hungary does not deny having been aware of, stated that a further measure would be taken. Point 6 of that decision, entitled ‘Disclosure against the explicit opinion of the author’, stated: ‘since the decision to grant partial access to documents … is taken against the objections of the Hungarian national authorities, the European Commission will inform the authorities of the Member State of its decision to grant partial access to these documents …. It will not grant such partial disclosure until a period of ten working days has elapsed from the formal notification of its decision to the Member State authorities …. This time period will allow the Hungarian national authorities to inform the European Commission whether they will object to the partial disclosure using the remedies available …’. (11) 24. It is therefore explicitly clear from the decision at issue that the Hungarian authorities were to be informed separately of the reasons why the Commission had not found the exception relied on to be applicable. It is also clear from that decision that the letter sent the day after its adoption (12) was therefore specifically intended to safeguard Hungary’s position in the light of the rights conferred on it by Regulation No 1049/2001. 25. It follows from that that there is no merit in Hungary’s argument that the protection of the interests of Member States requires that the reasons for disclosure despite objection by the Member State concerned be set out in the disclosure decision that is addressed solely to the party requesting access. 26. Because of the existence of the letter of 15 December 2021, it would have been superfluous to require the Commission to set out in the disclosure decision the reasons why it considered that the exceptions to disclosure provided for by Regulation No 1049/2001, and on which the third-party applicant logically did not rely, are not applicable. (13) 27. Third, as regards the statement in paragraph 28 of the judgment under appeal, according to which the letter of 15 December 2021 ‘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’, it must be noted that it is based on a detailed examination by the General Court of the content of that letter, which is supplemented by the considerations referred to in paragraph 29 of the judgment under appeal concerning the failure to demonstrate that the protection of the decision-making process was specifically and actually undermined. 28. Accordingly, it is clear from the analysis carried out in the judgment under appeal that the General Court did take care to ascertain whether the content of the letter of 15 December 2021, which formed part of the context in which the decision at issue was adopted, had enabled Hungary to understand the reasons why the Commission had, ultimately and after reconsideration, granted the third-party applicant access to the documents at issue and considered that the exception relied on by Hungary to object to that access did not apply. 29. Moreover, I can only note that the content of the application lodged with the General Court by Hungary against the decision at issue confirms that it was able to understand the reasons why the Commission considered that the exception relied on did not apply. Hungary cannot therefore claim that it was not given the opportunity to examine in detail the considerations which led to the adoption of the decision at issue. (14) 30. Consequently, the first part of the first ground of appeal must be rejected as unfounded. 2. The existence of a previous decision-making practice and an enhanced obligation to state reasons (a) Summary of the arguments of the parties 31. Hungary submits, in essence, that, contrary to what the General Court ruled in paragraph 37 of the judgment under appeal, the Commission was required to explain the reasons why, in the decision at issue adopted in response to the confirmatory application, it had departed from its initial decision. Hungary claims to have established the existence of a consistent decision-making practice in dealing with applications for access relating to Call for proposals EFOP 2.2.5. Where such a practice exists, it is for the Commission explicitly to set out its reasoning when it intends to depart from that practice, which follows also from the principle of sincere cooperation. 32. In its reply, Hungary disputes the relevance of the case-law cited in paragraphs 32, 35 and 36 of the judgment under appeal. Hungary focuses on the specific feature of the present case, which is, according to that Member State, that the same interested parties are subject to different assessments, both in two separate procedures and in the same procedure, in respect of the same facts. Therefore, the Commission should have provided an explanation in that regard. 33. Hungary submits that, although the Commission considered, in the context of the first assessment, that the exception contained in Article 4(3) of Regulation No 1049/2001 was applicable, it clearly changed its view in the decision at issue. That fundamental change in the approach of the Commission decision makes the analogy with the judgment in Deutsche Telekom v Commission, (15) cited by the General Court, irrelevant. 34. For its part, the Commission contends that, since Hungary has not challenged paragraph 33 of the judgment under appeal or demonstrated the existence of a different previous decision-making practice, the second part of the first ground of appeal should be held to be ineffective and, in any event, unfounded. (b) Assessment 35. First, as regards the complaint relating to the existence of a previous decision-making practice on the part of the Commission, Hungary seeks to rely on the case-law according to which, if a decision of the Commission departs appreciably from its usual decision-making practice and goes further than the previous decisions, the Commission must provide a fuller account of its reasoning. (16) However, in seeking to have the Commission’s position in its initial decision characterised as ‘consistent decision-making practice’, Hungary’s line of argument reveals a misunderstanding of the nature of the procedure which led to the adoption of the decision at issue. 36. It follows from the procedure established by Articles 6 to 8 of Regulation No 1049/2001 that that procedure may be carried out in two stages. (17) Accordingly, the application for access gives rise to an initial decision by the Commission (first stage). (18) The Commission proposed to grant in part the third-party applicant’s application for access, prompting the latter to submit a confirmatory application (second stage) on the basis of Article 7(2) of that regulation, requesting the Commission to reconsider its position. 37. Parallel to that bilateral procedure, which takes place between the Commission and the third-party applicant, a consultation procedure is carried out between the Commission and the Member State from which the documents to which access is sought originate, in whole or in part. (19) Although they are conducted separately, those two procedures will influence each another: the Commission’s position vis-à-vis the third-party applicant may be usefully supplemented by the observations received from the Member State consulted on the question of disclosure; the arguments raised by the third-party applicant in the context of its confirmatory application may also lead to a change in the Commission’s position regarding the applicability of the exceptions provided for in Article 4 of Regulation No 1049/2001. 38. As the Court has previously held, ‘the reply to an initial application for access to documents, under Article 7(1) [of Regulation No 1049/2001], is merely an initial statement of position, which in principle cannot be subject to an appeal …. Such a reply confers on the applicant the right, provided for in Article 7(2) of that regulation, to repeat an application for access notwithstanding a first reasoned refusal and allows the EU institution concerned to reconsider its initial position before taking a final refusal decision, which could be the subject of an action before the Courts of the European Union and, where appropriate, to remedy any illegalities affecting an initial refusal’. (20) 39. The position expressed by the Commission at the stage of the initial decision cannot therefore be regarded as the expression of a consistent decision-making practice on the part of the Commission. 40. As the Commission has stated, it would be contrary to the general scheme of Regulation No 1049/2001 to characterise any initial statement of position as a consistent decision-making practice, since every application for access to documents must systematically be reassessed as soon as the third party so requests, in the light of the matters of fact and law existing on the date the decision was adopted. (21) In other words, the dynamic nature of the Commission’s decision-making process regarding applications for access to documents precludes, by its very nature, any idea of a Commission practice being set in stone solely on the basis of its initial decision. 41. Furthermore, recognising that initial decisions in the matter have the force of a consistent decision-making practice could result in limiting the strength of the arguments put forward at the stage of the confirmatory decision and, thus, the rights of third-party applicants under Regulation No 1049/2001, which must also be preserved. 42. The General Court therefore did not err in law when it found, in paragraph 33 of the judgment under appeal, that, by merely referring to the initial decision which had refused access to the documents, Hungary cannot establish the existence of a consistent decision-making practice on the part of the Commission from which that institution is alleged to have departed in the decision at issue. 43. Moreover, paragraph 33 is also free from any error as regards the question whether the application for access bearing the reference GESTDEM 2020/1513 could be regarded as having the force of a consistent decision-making practice on the part of the Commission. It should be recalled that it is apparent from the letter of 15 December 2021 that the application for access which led to the adoption of the decision at issue follows on from that first application for access. (22) That said, it seems difficult to attribute such force to it since, first, consistency in decision-making practice requires an element of repetition, whereas the initial decision in the context of the examination of the application for access bearing the reference GESTDEM 2020/1513 can be regarded as an isolated decision, and second, the true meaning of the Commission’s decision can be understood only by taking into account the final decision adopted by the Commission as regards that application for access, which ultimately granted access to the documents covered by that application. 44. Second, as regards the claim that there is an enhanced obligation to state reasons, independent of the existence of a consistent decision-making practice, where the Commission adopts a confirmatory decision which is contrary, in whole or in part, to the initial decision, it must be noted that such an obligation is not supported by any textual argument or argument based on the case-law put forward by Hungary. 45. Hungary merely maintains that the case-law cited by the General Court in paragraphs 35 and 36 of the judgment under appeal (23) is not relevant because it concerns a situation which is not comparable. However, it merely follows from that case-law that the initial decision is only an initial statement of position, conferring on the applicant for access the opportunity to submit a confirmatory application, and that only the confirmatory decision, which replaces in full the previous statement of position, is capable of producing legal effects such as to affect the interests of the applicant for access and, consequently, of being the subject of an action for annulment. The conclusion reached by the General Court in paragraph 37 of the judgment under appeal that the Commission was required only to state the reasons for the solution which it reached in the confirmatory decision therefore appears correct. 46. Lastly, as regards the arguments relating to the principle of sincere cooperation, those arguments must, where appropriate, be examined when the Court considers the second ground of appeal, which is not the subject of this targeted Opinion. 47. It follows from the foregoing that the second part of the first ground of appeal must be rejected as unfounded. 48. Consequently, the first ground of appeal in its entirety appears to be unfounded. B. The third ground of appeal, alleging errors of law in the interpretation of the first subparagraph of Article 4(3) of Regulation No 1049/2001 49. The third ground of appeal is divided into four parts. According to Hungary, the General Court should have found that a decision-making process on the part of the Commission, for the purposes of the first subparagraph of Article 4(3) of Regulation No 1049/2001, connected with the finalisation of the draft call for proposals, was ongoing (first part). It should also have found that the documents at issue related to an ongoing Commission decision-making process concerning the amendment of the operational programme (second part). In any event, Hungary submits that the first subparagraph of Article 4(3) of Regulation No 1049/2001 is also applicable in the case of a decision-making process of a national managing authority responsible for finalising a draft call for proposals governed by Regulation No 1303/2013 (third part). Lastly, Hungary maintains that, contrary to what the General Court found, it has been established that the ongoing decision-making process linked with that draft call for proposals was seriously, actually and specifically undermined as a result of the disclosure of the documents at issue (fourth part). 1. The concept of ‘decision’ and the existence of a Commission decision-making process concerning the draft call for proposals (first part) (a) Summary of the arguments of the parties 50. In essence, Hungary criticises the General Court for having adopted an exclusively formalistic approach to the concept of ‘decision’ within the meaning of the first subparagraph of Article 4(3) of Regulation No 1049/2001. It is that formalistic approach which led the General Court to the erroneous conclusion that the Commission was not required to take a decision regarding Call for proposals EFOP 2.2.5 under Regulation No 1303/2013. (24) 51. Hungary claims that, even if the Commission does not formally adopt a decision, that institution exerts a decisive influence on the preparation and specific content of draft calls for proposals, given, in particular, the possibility that it may initiate an audit and exclude certain expenditure from the financing. It is in the national managing authority’s interest to follow the guidance which it receives from the Commission and the theoretical possibility that a Member State might disregard the Commission’s conclusions regarding the draft call for proposals is not a realistic alternative. 52. Hungary states that the required form of the Commission decision does not follow from the wording of the first subparagraph of Article 4(3) of Regulation No 1049/2001. The EU legislature used the point in time at which the institution adopts the decision as a mere temporal marker to distinguish that first scenario from that referred to in the second subparagraph of that provision. From a teleological perspective, whilst access to documents must be as broad as possible, it is nevertheless not unlimited. Any decision-making process, whatever its form and irrespective of whether or not it has been given concrete expression by a decision in the formal sense, therefore falls within the scope of the first subparagraph of Article 4(3) of Regulation No 1049/2001. The decision should, above all, be defined from a functional perspective. 53. According to Hungary, the Commission’s influence on the decision of the national managing authority by means of the exchanges evidenced by the correspondence between Hungary and the Commission regarding the draft call for proposals cannot be summed up as mere participation. That is evidenced by the fact that, during one of those exchanges, the Commission stated that it was considering the possibility of withdrawing EU financing if Hungary did not follow its proposals. 54. In areas in which management is shared, the decision-making processes are indistinguishable and it is not possible to distinguish the functions according to whether they are carried out by the Commission or by the Member States. Moreover, when the Commission gives its view on a draft call for proposals, the position which it expresses is comparable to an advance audit. 55. The Commission contends that the first part of the third ground of appeal should be rejected. (b) Assessment 56. I would recall that the first subparagraph of Article 4(3) of Regulation No 1049/2001 provides that access to a document drawn up or held by an 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 its disclosure. 57. In response to the arguments raised before it seeking to establish the existence of an ongoing Commission decision-making process, the General Court recalled the fundamental principles at the heart of Regulation No 1049/2001 (25) before examining the specific context in which the documents at issue were exchanged. Those documents relate to an exchange of internal views on a draft call for proposals which the Hungarian authorities were in the process of finalising with a view to obtaining financing under the ESI Funds, which come under shared management as defined by Regulation No 1303/2013. (26) 58. The General Court noted, in that context, that tasks relating to budget implementation are to be delegated to Member States and that, although the Member States and the Commission are to be responsible for the management and control of programmes, that is in accordance with their respective competences. (27) The management, control and audit obligations are to be fulfilled by the Member States. (28) For its part, the Commission must satisfy itself that the Member States have set up effective control systems during the implementation of programmes. (29) Member States are entrusted with preparing and implementing operational programmes and with carrying them out. (30) The preparation and publication of calls for proposals come within the responsibility of local action groups which are designated by Member States. (31) The national managing authority draws up and applies appropriate selection procedures and criteria for operations financed by the ESI Funds, which must be approved by the monitoring committee. (32) 59. The General Court concludes from that legal framework that calls for proposals governed by Regulation No 1303/2013 come within the exclusive responsibility of the Member States (33) and that that regulation ‘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 not required to take a decision relating to Call for proposals EFOP 2.2.5’. (34) 60. Hungary does not dispute such a conclusion and acknowledges that the Commission was not required to adopt a formal decision regarding that call for proposals. That Member State maintains, however, that the Commission decision can be ‘functional’ in nature by virtue of the influence which the Commission in fact exerts through informal exchanges with Member States concerning draft calls for proposals relating to the ESI Funds. 61. Such an approach cannot be accepted. 62. The Court has held that the concept of a ‘decision-making process’ within the meaning of the first subparagraph of Article 4(3) of Regulation No 1049/2001 must be understood as relating directly to the taking of a decision. (35) The taking of a decision, within the meaning of that provision, presupposes that there is a specific matter to which the decision to be taken will relate, and that is so irrespective of whether the adoption of a specific and identifiable draft act is imminent. (36) Furthermore, the Court has also ruled that to hold that a decision has not yet been taken and therefore a ‘decision-making process’, within the meaning of the first subparagraph of Article 4(3) of Regulation No 1049/2001, is ongoing where there is no defined object of such a process would be contrary to both the scheme of that provision and the requirement that a refusal of access be based on the existence of a specific and actual, that is to say, reasonably foreseeable and not purely hypothetical, risk of the protected interest being undermined. (37) So long as the specific object of a decision to be taken in the future has not yet been defined, any risk that the decision-making process aimed at adopting that decision would be undermined as a result of the disclosure of a document requested pursuant to Regulation No 1049/2001 is by definition hypothetical, given that it would, in practice, be impossible to ascertain whether the content of that document actually relates to that decision-making process. (38) 63. I acknowledge that the complex nature of the arrangements for the organisation and management of EU funds does not facilitate the identification of a decision-making process. Nevertheless, Regulation No 1303/2013 seeks to confer distinct competences on the various stakeholders concerned. (39) 64. In the present case, the problem lies not so much in the absence of a formal decision as in the fact that the object of the decision-making process, as claimed by Hungary to exist, is not, and cannot be, defined. 65. First, as the Commission stated, finalisation of the call for proposals does not require the Commission’s approval, since it falls within the exclusive competence of the Member States by virtue of the division of competences under Regulation No 1303/2013. 66. Second, the argument that the exchange of internal views reflected in the documents at issue constitutes an advance audit decision by the Commission cannot be accepted: until the decision of the national managing authority relating to the call for proposals has been adopted, there is no question of the Commission auditing anything. Until the national managing authority’s decision establishing the framework for that call has been adopted, the Commission is not in a position to form an opinion or to exercise the decision-making powers conferred on it under Regulation No 1303/2013. 67. Hungary cannot therefore argue that the Commission’s influence over the process of preparing the call for proposals is such that that institution’s activity amounts to an advance audit decision, while there is still no certainty as to the very existence and the content of the call for proposals. In its response, the Commission correctly argued that, throughout an informal dialogue such as that which gave rise to the exchange of internal views, the national authorities are free to decide to follow the Commission’s proposals or to continue with their draft call for proposals, or even to forego financing from the ESI Funds, as is also clear from paragraph 90 of the judgment under appeal, which is not contested by Hungary. 68. Nor am I convinced by the argument that the exchange of internal views allows the national authorities concerned to meet the Commission’s expectations in order to avoid future financial corrections which it might decide on: a strategy implemented to avoid a future decision being taken cannot substantiate the existence of an ongoing decision-making process for the purposes of the first subparagraph of Article 4(3) of Regulation No 1049/2001. 69. Therefore, even if the approach referred to as ‘formalistic’ by Hungary, taken by the General Court and supported by a strict interpretation of the first subparagraph of Article 4(3) of Regulation No 1049/2001, (40) were to be abandoned – quod non – in favour of the ‘functional’ approach proposed by Hungary, the link between the documents to which access is sought and the Commission’s decision-making process is too hypothetical and uncertain, since that process cannot actually be identified. In other words, even the ‘functional’ approach is unsuccessful in establishing the existence of a decision-making process on the part of the Commission. 70. Lastly, without anticipating the analysis to be carried out in the context of the examination of the fourth part of the third ground of appeal, the inadequacy of the argument put forward by Hungary seems to me to be illustrated by the following consideration: even if the functional argument were to prevail, I do not see how it would be possible for the Commission to justify, as required by the case-law, a decision refusing access to documents by demonstrating that access would give rise to a risk that is reasonably foreseeable and not purely hypothetical of the interest protected by the first subparagraph of Article 4(3) of Regulation No 1049/2001 being undermined. 71. Accordingly, the first part of the third ground of appeal must be rejected as unfounded. 2. The existence of an ongoing Commission decision-making process concerning a request to amend the operational programme (second part) (a) Summary of the arguments of the parties 72. In essence, Hungary submits that the General Court misinterpreted the first subparagraph of Article 4(3) of Regulation No 1049/2001 by failing to find that the correspondence with the Commission relating to the content of the call for proposals concerned an ongoing Commission decision-making process, because it could relate to a request to amend the operational programme, and such an amendment would presuppose a decision by the Commission. However, a request to amend an operational programme begins not only after the formal request for amendment but, in practice, at the time when its content has been agreed with the Commission. 73. Hungary states that the Commission often makes observations prior to the submission of a request to amend such a programme, which are accepted by the Member State concerned in order to avoid the risk of a financial correction. Hungary illustrates its position by referring to two exchanges with the Commission dated 7 July 2017 and 13 July 2021. A Member State does not submit a proposal for amendment to the Commission without that institution having first approved it in an informal context. 74. The Commission contends that the second part of the third ground of appeal is partly inadmissible, on account of the attempt to submit new evidence at the appeal stage, and partly unfounded. (b) Assessment 75. Hungary’s line of argument follows on from that put forward in the first part of the third ground of appeal, inasmuch as that Member State again seeks to criticise what it claims is an overly formalistic approach to the decision-making process which the General Court is alleged to have adopted in refusing to find that the exchange of internal views between Hungary and the Commission concerned a decision-making process relating to a request to amend an operational programme. 76. As a preliminary point, I cannot help but think that Hungary’s line of argument, which maintains that the ongoing decision-making process to which the documents at issue are claimed to relate concerns either the finalisation of a call for proposals or a request to amend an operational programme, tends rather to confirm the undefined nature of the object of the decision to be taken whose process would be protected by the application of the first subparagraph of Article 4(3) of Regulation No 1049/2001. 77. In any event, as regards the functional approach, I would refer, mutatis mutandis, to the analysis of its limitations set out in the examination of the first part of the third ground of appeal. Consequently, the entire line of argument concerning the informal nature of the Commission’s influence must be rejected. 78. I also note that the General Court recognised that the Commission may be required to adopt a decision in the event of an amendment of the operational programme of which a call for proposals forms part, on the basis of Article 30(2) of Regulation No 1303/2013. (41) However, the General Court also pointed out that, at the time of the decision at issue, no such request for amendment had been submitted to the Commission (42) and it explained the reasons leading it to make that finding, with the result that the General Court appears to have provided reasoning to the requisite legal standard. 79. As regards the two exchanges referred to by Hungary, as the Commission noted, even assuming that they were relevant and sufficient to establish the existence of a request for amendment, quod non, I take the view that the reference to those exchanges seeks to have the Court of Justice assess evidence which was not previously submitted to the General Court. They therefore do not come within the jurisdiction of the Court of Justice in the context of an appeal. 80. The second part of the third ground of appeal must therefore be rejected as partly inadmissible and partly unfounded. 3. Application of the exception provided for by the first subparagraph of Article 4(3) of Regulation No 1049/2001 to the ongoing decision-making process of the national managing authorities responsible for finalising draft calls for proposals under Regulation No 1303/2013 (third part) (a) Summary of the arguments of the parties 81. In essence, Hungary maintains that the General Court erred in finding that the first subparagraph of Article 4(3) of Regulation No 1049/2001 is not intended to protect the legitimate interests of Member States and is not applicable where decision-making processes of national managing authorities, for the purposes of Regulation No 1303/2013, are ongoing. In particular, Hungary claims that the General Court adhered to a strictly literal interpretation of that provision, whereas to achieve a delicate balance between increased transparency and the protection of the legitimate interests of Member States, following the abandonment of the authorship rule, it is necessary to go beyond the wording of the first subparagraph of Article 4(3) of Regulation No 1049/2001. 82. The Court has already recognised that that article may be relied on by Member States in order to safeguard their own decision-making processes, (43) since the protection of the interests of Member States is an objective limit that justifies the refusal to disclose the documents in question. A restrictive interpretation of such a limit could undermine Member States’ trust in the institutions and lead to unjustified discrimination between the institutions and Member States. Whereas Member States turn to the Commission in case of doubt, in order to avoid financial corrections, if the General Court’s interpretation of the first subparagraph of Article 4(3) of Regulation No 1049/2001 were to be upheld, that would result in a reduction in the effectiveness of the consultation process with the Commission, since Member States risk, by communicating with the Commission, making public considerations on which they have not yet actually taken a decision. If Member States cannot protect the decision-making processes of their institutions, they will have no interest in approaching the Commission concerning matters on which one of their authorities has not yet taken a decision. Access to documents could be ensured after national decision-making processes have concluded. 83. The Commission contends that the third part of the third ground of appeal should be rejected as unfounded. (b) Assessment 84. The General Court held, in paragraph 127 of the judgment under appeal, that the exception under the first subparagraph of Article 4(3) of Regulation No 1049/2001 cannot be interpreted as also protecting the decision-making process of national managing authorities for the purposes of Regulation No 1303/2013. The General Court recalled that the word ‘institution’ in the first subparagraph of Article 4(3) of Regulation No 1049/2001 was defined in Article 1(a) of that regulation as referring to the European Parliament, the Council or the Commission, whereas it follows from Article 3(b) of that regulation that Member States and non-Community institutions are covered by the concept of ‘third party’. (44) The General Court next set out to examine the wording of the first subparagraph of Article 4(3) of Regulation No 1049/2001, as well as its object and purpose, (45) before recalling the requirement for a strict interpretation of the exceptions referred to in Article 4. (46) 85. The arguments put forward by Hungary in the third part of the third ground of appeal do not seek to call into question that analysis, which, moreover, follows an entirely standard approach where the EU Courts are called upon to interpret a provision of EU law. By contrast, Hungary submits that the General Court should have gone beyond the wording of the first subparagraph of Article 4(3) of Regulation No 1049/2001, since the protection of the legitimate interests of Member States constitutes an objective reason which justifies making the benefit of that exception available to them in order to protect their own decision-making processes, which can be inferred, according to Hungary, from the judgment in Sweden v Commission. (47) 86. Hungary’s position is based on a misreading of that judgment. 87. It is, in fact, incorrect to rely on that case-law to support an interpretation of the first subparagraph of Article 4(3) of Regulation No 1049/2001 which is so broad as to run counter to its wording. The lessons to be learned from that judgment regarding the interpretation of the provisions of that regulation can be understood only within the limits of that regulation’s scope. Accordingly, where the Court states in that judgment that the first subparagraph of Article 4(3) of Regulation No 1049/2001 provides for a substantive exception and takes care to define the objective limits of public or private interest that are capable of justifying a refusal to disclose, (48) it is clear that those limits always fall within the scope of the regulation and that account must be taken of the conditions which must all be satisfied for the purpose of applying that provision. As the General Court pointed out, the first subparagraph of Article 4(3) of Regulation No 1049/2001, read in the light of Article 1(a) of that regulation, does not apply where the decision-making process of a non-Community body is ongoing. The scope of Regulation No 1049/2001 is thus defined by reference to the institutions listed in the regulation, not by reference to particular categories of documents or the author of the document held by those institutions. (49) 88. Contrary to what Hungary claims, adopting such an interpretation of the scope of the first subparagraph of Article 4(3) of Regulation No 1049/2001 does not render Article 4(5) of that regulation meaningless. It is precisely the latter provision which makes it possible to safeguard, while an institution’s decision-making process is ongoing, the interests which a Member State considers legitimate, (50) by affording it the opportunity of requesting that institution not to disclose a document originating from that Member State. (51) However, the Court has already refused to recognise Article 4(5) of Regulation No 1049/2001 as a conflict-of-laws rule for the purpose of preserving the application of national rules or the policies of the Member States, concerning access to documents originating from the Member States, at the expense of the specific rules of that regulation. (52) Article 4(5) of Regulation No 1049/2001 is delimited by the substantive exceptions set out in Article 4(1) to (3) and constrained by the limits of those exceptions. (53) 89. An extension of the scope of the exception referred to by the first subparagraph of Article 4(3) of that regulation in the direction sought by Hungary would manifestly disregard the legislature’s intention to limit it solely to documents relating to a decision-making process of an institution, within the meaning of Regulation No 1049/2001. 90. The rules are clear, including for Member States. That is why I do not share Hungary’s concern regarding the erosion of trust in communication between Member States and the Commission. (54) In any event, such a concern cannot justify an interpretation of the first subparagraph of Article 4(3) of Regulation No 1049/2001 that goes beyond its wording, which, in addition and as the General Court correctly found, would be contrary to the requirement of a restrictive interpretation as provided for by that article. (55) 91. Following the foregoing analysis, it has not been possible to identify any error of law. The third part of the third ground of appeal must be rejected as unfounded. 4. Whether the ongoing decision-making process was seriously, effectively and specifically undermined (fourth part) (a) Summary of the arguments of the parties 92. Hungary claims that the General Court erred in law in stating that Hungary had not demonstrated that the decision-making process concerning the finalisation of the EFOP 2.2.5 draft call for proposals was seriously, effectively and specifically undermined. The appellant maintains that disclosure of the documents could undermine the finalisation of that draft call for proposals, because it would provide privileged information to certain organisations, which would make them better able to prepare their response to that call. 93. Hungary also disputes the statement, which it claims is only partially accurate, contained in paragraph 137 of the judgment under appeal, according to which the content of Call for proposals EFOP 2.2.5 was, at the time of the application for access to the documents (June 2021), publicly available online, whereas, according to that Member State, the EFOP 2.2.5 draft call for proposals had been amended (draft call for proposals EFOP 2.2.25) and the amended version was, for its part, published only on 28 October 2022. 94. The Commission contends that the fourth part of the third ground of appeal should be rejected. (b) Assessment 95. The fourth part of the third ground of appeal asks the Court to rule, in the event that Article 4(3) of Regulation No 1049/2001 is applicable to the correspondence between the Commission and Hungary concerning the finalisation of the draft call for proposals EFOP 2.2.5, on whether the decision-making process has been undermined such as to satisfy the conditions laid down by that provision. 96. It was in the interest of completeness that the General Court examined whether that condition was satisfied, (56) since it had found that there was no ongoing Commission decision-making process and therefore that the exception to disclosure relied on by Hungary was inapplicable. Since I propose that the Court uphold the judgment under appeal on that point, it need not, in principle, address the fourth part of the third ground of appeal. 97. Nevertheless, I shall continue the analysis by noting that the General Court recalled that the mere fact that a document concerns an interest protected by the first subparagraph of Article 4(3) of Regulation No 1049/2001 is not sufficient to justify its non-disclosure, (57) since the application of the exception provided for requires it to be established that access to the document requested is likely to undermine specifically and actually the protection of the institution’s decision-making process in the context of a risk which is reasonably foreseeable and not purely hypothetical. (58) The General Court also noted that the harm caused must reach a certain threshold of seriousness. (59) 98. That analytical approach is consistent with the relevant case-law. The Court has previously held that where an EU institution decides to refuse to grant an application for access on the basis of one of the exceptions laid down in Article 4 of Regulation No 1049/2001, it must explain how access to that document could specifically and actually undermine the interest protected by that exception, and the risk of the interest being undermined must be reasonably foreseeable and must not be purely hypothetical. (60) Likewise, it is for the person who is seeking the application of one of those exceptions by an institution to which Regulation No 1049/2001 applies to provide, in due time, equivalent explanations. (61) The existence of such a risk must be established, since a mere unsubstantiated claim cannot be a sufficient basis for finding that the exception is applicable. (62) 99. Hungary does not dispute that standard. It was therefore for it to establish, before the General Court, that the decision-making process relating to the finalisation of the draft call for proposals could be seriously, actually and specifically affected by the disclosure of the documents at issue. 100. In that regard, the General Court considered that the grounds put forward by Hungary did not make it possible to determine that the disclosure of the documents at issue could affect the decision-making process in such a manner. (63) Hungary’s assertions that disclosure of the documents would undermine the principles of equal treatment, non-discrimination and transparency because potential beneficiaries of Call for proposals EFOP 2.2.5 might obtain information that would procure an unfair competitive advantage for them were not substantiated, since Hungary did not put forward any detailed argument or any evidence. (64) Lastly, the General Court also relied on the Commission’s analysis that disclosure of the documents at issue could not, on the date of the decision at issue, undermine the decision-making process linked with that call for proposals, since on that date the content of that call was publicly available. (65) 101. At the appeal stage, although Hungary appears to dispute, by means of general claims, the conclusion reached by the General Court, it does so without ever persuading, since the arguments made merely repeat those put forward before the General Court. 102. As to the remainder, concerning paragraph 137 of the judgment under appeal, Hungary maintains that the General Court’s statement that the call for proposals was available on the date of the initial application ‘is only partially true’ (66) and the General Court should have taken into account the fact that a new draft call for proposals (67) had been published after the date of the decision at issue and that access to the documents at issue could have enabled some interested parties to obtain information affording them a competitive advantage. I note, however, that the judgment under appeal makes no reference to such an argument, which the Commission is therefore right to regard as new and, as such, falling outside the Court’s jurisdiction in the context of an appeal,(68) a point which Hungary does not appear to dispute. (69) In any event, Hungary refers only to potential access which could give rise to an unspecified competitive advantage. Such a lack of precision also does not appear to meet the standard required in order to show the existence of a serious, actual and specific undermining. 103. Consequently, the fourth and last part of the third ground of appeal must be rejected. 5. Conclusion on the third ground of appeal 104. Having examined the four parts of the third ground of appeal, it must be concluded that that ground of appeal should be rejected as unfounded. C. Conclusion 105. In the light of all the foregoing considerations, I propose that the Court reject the first and third grounds of appeal. 1 Original language: French. 2 T‑104/22, ‘the judgment under appeal’, EU:T:2024:467. 3 OJ 2001 L 145, p. 43. 4 That 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’), had been drawn up by the managing authority designated by the Hungarian authorities to implement the operational programme relating to the development of human resources for the deinstitutionalisation of persons with disabilities currently living in institutions in Hungary (EFOP). EFOP had been adopted by the Commission 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, and corrigendum OJ 2016 L 200, p. 140). 5 Those documents were an email of 11 March 2020, containing two annexes, from the Hungarian authorities, and four letters from the Hungarian authorities to the Commission dated 19 June 2020, 6 August 2020, 5 January 2021 and 14 April 2021. 6 By way of reminder, Article 4(3) to (5) of Regulation No 1049/2001 is worded as follows: ‘3. Access to a 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, shall 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. Access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned shall be refused even after the decision has been taken if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure. 4. As regards third-party documents, the institution shall consult the third party with a view to assessing whether an exception in paragraph 1 or 2 is applicable, unless it is clear that the document shall or shall not be disclosed. 5. A Member State may request the institution not to disclose a document originating from that Member State without its prior agreement.’ 7 Namely, the five documents from the Hungarian authorities initially identified by the Commission and the four additional documents identified at the stage of the confirmatory application (‘the documents at issue’). 8 It will be for the Court to respond first to the Commission’s argument, which leaves the Court with the task of assessing the admissibility of the appeal in the light of the requirements of Articles 168 and 169 of the Rules of Procedure of the Court of Justice (see paragraphs 12 and 13 of the Commission’s response). However, I take the view that, since, first, the Commission has not raised any plea of inadmissibility, and second, the content of the Commission’s response demonstrates that the Commission was fully able to understand the arguments set out in the appeal, said appeal should be declared admissible. 9 Hungary does not appear to call into question the case-law referred to in paragraph 24 of the judgment under appeal, which is confirmed by a reading of paragraph 24 of the appeal. 10 See Article 4(4) and (5) of Regulation No 1049/2001. 11 Emphasis added. 12 The basis for that is Article 5(5) and (6) of the detailed rules for the application of Regulation No 1049/2001, added as an annex to the Commission’s Rules of Procedure by its decision of 5 December 2001 amending its rules of procedure (OJ 2001 L 345, p. 94). 13 Where the Commission intends to grant access to documents in spite of a Member State’s objection, confidentiality concerns could even support the reasons for doing so always being communicated separately from the disclosure decision. 14 See paragraph 29 of the appeal. 15 Judgment of 28 March 2017 (T‑210/15, EU:T:2017:224). 16 See judgment of 29 September 2011, Elf Aquitaine v Commission (C‑521/09 P, EU:C:2011:620, paragraph 155). 17 See judgment of 29 July 2024, Validity v Commission (C‑51/23 P, EU:C:2024:664, paragraphs 49 and 62). 18 Namely, the decision of 16 June 2021: see paragraph 7 of the judgment under appeal. 19 See Article 4(4) and (5) of Regulation No 1049/2001. 20 Judgment of 29 July 2024, Validity v Commission (C‑51/23 P, EU:C:2024:664, paragraph 49 and the case-law cited). 21 See paragraph 28 of the Commission’s response. 22 I would point out that that application for access, which already concerned documents relating to Call for proposals EFOP 2.2.5, was initially refused on the basis of objections raised by Hungary, which relied on the protection of the ongoing decision-making process. That initial decision was confirmed at the stage of the confirmatory application before the applicant for access brought an action for annulment before the General Court. During the proceedings before the General Court, the Commission decided to reverse its confirmatory decision and ultimately granted access to the documents, which led the General Court to find that there was no need to adjudicate (see order of 22 November 2022, Validity v Commission (T‑640/20, EU:T:2022:752)). All those factors are recalled in the letter of 15 December 2021. 23 That is to say, the judgment of 28 March 2017, Deutsche Telekom v Commission (T‑210/15, EU:T:2017:224). 24 See paragraph 76 of the judgment under appeal. 25 See paragraphs 60 to 63 of the judgment under appeal. 26 See paragraphs 64 to 66 of the judgment under appeal. 27 See paragraphs 67 and 68 of the judgment under appeal. 28 See paragraph 69 of the judgment under appeal. 29 See paragraph 70 of the judgment under appeal. 30 See paragraph 71 of the judgment under appeal. 31 See paragraph 72 of the judgment under appeal. 32 See paragraphs 73 and 74 of the judgment under appeal. 33 See paragraph 75 of the judgment under appeal. 34 Paragraph 76 of the judgment under appeal. 35 As the General Court recalled in paragraph 82 of the judgment under appeal. 36 See judgment of 16 January 2025, Commission v Pollinis France (C‑726/22 P, EU:C:2025:17, paragraph 73). 37 See judgment of 16 January 2025, Commission v Pollinis France (C‑726/22 P, EU:C:2025:17, paragraph 63). 38 See judgment of 16 January 2025, Commission v Pollinis France (C‑726/22 P, EU:C:2025:17, paragraph 74). 39 See point 58 of the present Opinion. 40 See paragraphs 80 to 86 of the judgment under appeal. 41 See paragraphs 97 and 98 of the judgment under appeal. 42 See paragraph 99 of the judgment under appeal. 43 In that regard, Hungary relies on the judgment of 18 December 2007, Sweden v Commission (C‑64/05 P, EU:C:2007:802, paragraph 57). 44 See paragraph 109 of the judgment under appeal. 45 See paragraphs 110 to 112 of the judgment under appeal. 46 See paragraph 113 of the judgment under appeal. 47 Judgment of 18 December 2007 (C‑64/05 P, EU:C:2007:802). 48 See judgment of 18 December 2007, Sweden v Commission (C‑64/05 P, EU:C:2007:802, paragraph 57). 49 See judgment of 18 July 2017, Commission v Breyer (C‑213/15 P, EU:C:2017:563, paragraph 37 and the case-law cited). 50 See judgment of 18 December 2007, Sweden v Commission (C‑64/05 P, EU:C:2007:802, paragraph 83). 51 That is to say, both the documents of which the Member State itself is the author and those which have been merely transmitted by that Member State to the institution concerned: judgment of 18 December 2007, Sweden v Commission (C‑64/05 P, EU:C:2007:802, paragraph 61). 52 See judgment of 18 December 2007, Sweden v Commission (C‑64/05 P, EU:C:2007:802, paragraph 65). 53 See judgment of 18 December 2007, Sweden v Commission (C‑64/05 P, EU:C:2007:802, paragraph 76). 54 I would add here that the fact that the scope of the first subparagraph of Article 4(3) of Regulation No 1049/2001 is not extended to documents relating to the decision-making process of a national managing authority is without prejudice to the possibility for a Member State to rely, where the exception may apply, on compliance with certain rules of national law protecting a public interest, opposing disclosure of a document and relied on by a Member State for that purpose, which could then be regarded as an interest deserving of protection on the basis of that provision: see judgment of 18 December 2007, Sweden v Commission (C‑64/05 P, EU:C:2007:802, paragraph 84). 55 See judgments of 17 October 2013, Council v Access Info Europe (C‑280/11 P, EU:C:2013:671, paragraph 30 and the case-law cited); of 8 June 2023, Council v Pech (C‑408/21 P, EU:C:2023:461, paragraph 33); and of 16 January 2025, Commission v Pollinis France (C‑726/22 P, EU:C:2025:17, paragraph 62). 56 See paragraph 129 of the judgment under appeal. 57 See paragraph 130 of the judgment under appeal and the case-law cited. 58 See paragraph 131 of the judgment under appeal and the case-law cited. 59 See paragraph 132 of the judgment under appeal and the case-law cited. 60 See judgments of 22 January 2020, MSD Animal Health Innovation and Intervet International v EMA (C‑178/18 P, EU:C:2020:24, paragraphs 54 and 93 and the case-law cited) and of 16 January 2025, Commission v Pollinis France (C‑726/22 P, EU:C:2025:17, paragraph 63 and the case-law cited). 61 See judgment of 22 January 2020, MSD Animal Health Innovation and Intervet International v EMA (C‑178/18 P, EU:C:2020:24, paragraph 94). 62 See, by analogy, judgment of 22 January 2020, MSD Animal Health Innovation and Intervet International v EMA (C‑178/18 P, EU:C:2020:24, paragraph 95). 63 See paragraph 133 of the judgment under appeal. 64 See paragraphs 134 and 135 of the judgment under appeal. 65 See paragraph 137 of the judgment under appeal. 66 See paragraph 124 of the appeal. I note that Hungary misreads the judgment under appeal, since the General Court refers therein not to the date of the initial application but to the date of the decision at issue. 67 EFOP 2.2.25. 68 See judgment of 15 January 2026, XH v Commission (Harassment during sick leave) (C‑75/24 P, EU:C:2026:6, paragraph 177 and the case-law cited). 69 See paragraph 44 of Hungary’s reply.