Dear Justice and Consumers,

Under the right of access to documents in the EU treaties, as developed in Regulation 1049/2001, I am requesting documents which contain the following information:

- Letter from the Commission to Hungary dd. 14.02.2022, registered under reference number Ares(2022)1074841 (hereafter ‘document 1’);
- Letter from Commission to Poland dd. 14.02.2022, registered under reference number Ares(2022)1074786 (hereafter ‘document 2’);
- Letter from Commission to Spain dd. 24.05.2022, registered under reference number Ares(2022)3894228 (hereafter ‘document 3’);
- Letter from Hungary to Commission dd. 11.05.2022, registered under reference number Ares(2022)4084762 (hereafter ‘document 4’);
- Letter from Poland to Commission dd. 29.03.2022, registered under reference number Ares(2022)2373937 (hereafter ‘document 5’).

I was denied access to these letters in a reply to my confirmatory application dating to 12 December 2022, based on the exception in Article 4.2. for inspections and audits. The Commission told me then that the letters related to an ongoing investigation possibly leading to an infringement procedure. As more than 16 months have passed, I wanted to ask the Commission to revisit its decision to see whether it can now give access to the letters.

Related to this would like to point out the ruling of the General Court in Homoki v Commission (T-517/19). There, the court has made clear that the presumption of non-disclosure to protect an investigation or audit may not be made 'dependent on an uncertain, future and possibly distant event, depending on the speed and diligence of the various authorities'. I ask the Commission to clarify in what reasonable time frame the investigation will be completed. If this even is not entirely foreseeable and soon, I ask to give access to the file.

Yours faithfully,

Alexander Fanta
Follow the Money
Rue Auguste Orts 2
1000 Bruxelles

Dear Justice and Consumers,

Please pass this on to the person who reviews confirmatory applications.

I am filing the following confirmatory application with regards to my access to documents request 'Pegasus letters to member states', EASE 2024/2215.

Regarding your refusal to provide access under Article 4(2) for the protection of inspections and audits, the European Ombudsman has found in several rulings that the risk of a protected interest being undermined must be reasonably foreseeable and not purely hypothetical. Furthermore, institutions need to prove, for each individual document, that disclosure would undermine the investigation (see European Ombudsman cases: 3699/2006/ELB 06 April 2010; 725/2014/FOR 01 October 2015; 248/2016/PB 31 October 2016). Likewise the Court, in Franchet and Byk (T-391/03 and T-70/04), stated that this exception only applies if disclosure of the documents in question endangers the completion of the investigation. In the ruling of the General Court in Homoki v Commission (T-517/19), the court has made clear that the presumption of non-disclosure to protect an investigation or audit may not be made 'dependent on an uncertain, future and possibly distant event, depending on the speed and diligence of the various authorities'.

Can the Commission state in this case why these letters are still "under assessment by the European Commission"? In December 2022, I was told by the Commission that these letters pertain to an ongoing investigation possibly leading to an infringement procedure. In the light of the Homoki ruling, can the Commission clarify whether there is any clear timeline for this investigation, and what its completion may depend on? I argue that the argument against disclosure, namely that disclosure would "undermine the mutual trust" with member states, is of a broad and general nature, and that the Commission can not withhold them from public disclosure without providing a specific rationale and clear timeline and milestones for the completion of the investigation.

Furthermore, I would like to argue for an overriding public interest in disclosure. In this regard, I would like to point to the European Parliament resolution passed on 15 June 2023, following the conclusion of the PEGA special committee, which called on Hungary and Poland to "launch credible investigations into [spyware] abuse cases". The PEGA committee final report asked the Commission in great detail to take action against member states when they fail their task in upholding the rule of law in regard to the misuse of spyware. The letters I requested specifically relate to that task, and provide a window into the attempts (or failures) of the European Commission to uphold the rule of law, and act as Guardian of the Treaties vis-à-vis the Member States. Failure to disclose the letters makes an independent assessment of Commission actions in this area impossible, and thereby contradicts demands from the European Parliament, civil society and journalists organizations from across Europe for more transparency on the alleged abuse of spyware by EU member states and follow-up action by the European institutions.

Yours faithfully,

Alexander Fanta