General Court Defines Conditions for Public Access to OLAF Final Report
On 1 September 2021, the General Court annulled the decision of the European Anti-Fraud Office (OLAF) not to grant (partial) access to its final investigation report. The case (T-517/19, Homoki v Commission) concerned the request of an activist from a civil association to grant access to the final report of OLAF’s investigation into a street lighting project carried out in Hungary with the financial participation of the EU.
The General Court had to interpret the limits for the exceptional refusal of public access to Commission documents pursuant to Regulation 1049/2001 (Art. 4). The General Court found that, in principle, OLAF can rely on the general presumption that access to the administrative file processed by OLAF would undermine the protection of the purpose of its investigations. However, there must be limits to this general presumption, otherwise public access would be made subject to an uncertain, future and possibly distant event, depending on the speed and diligence of the various authorities.
OLAF could no longer invoke the objective of protecting its own investigative activities if the investigations had already been completed. This was the case here, since the Hungarian authorities had already closed the follow-up procedure by a decision finding that there was no infringement. Hence, also the presumption of innocence of the persons concerned can no longer justify a refusal of access.
The decision of the General Court is not final yet. An appeal against the decision may be lodged to the ECJ, limited to points of law, within two months.