NGO wins in the European Court of Justice: OLAF’s Elios report must be made public

Gabriella Horn (Atlatszo) 2021-09-18

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Viktor Orban’s son-in-law – István Tiborcz – co-owned and managed the company, Elios Innovatív Zrt at the time when it won contracts to install new street lights in towns across Hungary between 2011-2015. The 35 contracts in question were worth €40 million, financed by EU funds. OLAF (the European Anti-Fraud Office) found irregularities with the street lighting projects carried out by Elios and sent its recommendations for action to be taken to the Hungarian government. This report will have to be made – partially – public as a result of a lawsuit initiated by a Hungarian NGO for access to the document.

A Hungarian NGO Eleven Gyál claimed that the street lighting installed by Elios in some parts of their municipality was of very poor quality and inadequate. Because of this they wanted access to OLAF’s findings, but they were denied access to the document. With the help of the Hungarian Civil Liberties Union, an activist from the NGO brought an action against the European Commission before the General Court of the European Union, seeking annulment of this decision. The General Court of the European Union has now annulled OLAF’s decision refusing partial access to the final investigation report on EU-funded public lighting projects in Hungary.

In March 2019, an activist from Eleven Gyál submitted a request to the European Anti-Fraud Office (OLAF) under the Access to Documents Regulation for access to the final report of the OLAF investigation into the EU-funded street lighting projects in Hungary, carried out by Elios Innovatív Zrt. OLAF refused to give access to the documents even without any personal data concerning witnesses, internal notes and references to OLAF’s methods redacted. In order to have access to the report Eleven Gyál association brought a legal action against the European Commission, with the assistance of a human rights NGO, the Hungarian Civil Liberties Union (in Hungarian: Társaság a Szabadságjogokért, TASZ). According to the court’s decision the report may now be made partially public because the Hungarian authorities have already closed the national investigations into this report and the purpose of protecting the investigations no longer justifies refusing access to the requested document.

“The European Commission can still appeal against the decision, but the Civil Liberties Union (TASZ) hopes that the body will not use this option, as the Commission’s report on the rule of law revealed that Hungary is failing to take decisive action in corruption cases involving senior officials or their immediate environment. According to the EU’s General Court, this case is about the ability of citizens to effectively scrutinise the legality of the exercise of public power – and the decision contributes to avoiding the possibility of holding suspected corruption cases to account by not calling EU funds in cases under investigation by OLAF”, commented the Hungarian Civil Liberties Union on its website.

Atlatszo.hu has written a series of articles about the irregularities found in connection with Elios’ contracts. It also reported on how the local government of Gyál rejected the opinion of the OLAF investigation. OLAF sent the results of two years of its work to Hungarian authorities at the beginning of 2018, recommending legal action over “serious irregularities” and “conflict of interest” connected to Elios Zrt. After Atlatszo.hu filed a freedom of information request with each municipality in question, OLAF revealed the way Elios made sure it would win the public tenders in the letters sent to Hungarian towns who won EU funds for new public lights.

In the articles Atlatszo detailed how Hungarian authorities sabotaged the fraud investigation against Orban’s son-in-law. The government of Hungary decided in the end not to send the invoices connected to Elios to Brussels – that is, no EU funds are used to pay Elios, instead Hungarian taxpayers had to pay the bill.

Earlier, Transparency International launched and won a lawsuit against the sam municipality (Gyál) to disclose the contract with Elios: after the first instance judgment of the Budakörnyéki District Court, the municipality of Gyál disclosed the data, and it was revealed that the company (belonging at that time Viktor Orbán’s son in law) received HUF 193 620 000 for the contract.

OLAF closed their Elios-investigation in December 2017 and sent their report to the Hungarian authorities with recommendations for action to be taken. By a decision of 22 May 2019, OLAF rejected the activist’s application, considering that the case was covered by the prohibition on public access to documents relating to their investigations.

The General Court has now annulled the contested decision of OLAF because they found that OLAF had misapplied the Access to Documents Regulation by refusing access to the version of the final report in which any personal data relating to witnesses, internal notes and references to OLAF’s methods were concealed. An appeal against the decision of the General Court may be brought before the Court of Justice within two months and ten days of the date of notification of the decision.