Background to the complaint

1. Multimodal digital mobility services (MDMS) are digital platforms that combine various transport modes into a single interface for planning, booking and payment. They are meant to make travel more convenient, affordable, and sustainable, and are therefore part of the EU’s Green Deal and its mobility strategy.[1] In view of this, the European Commission announced its intention to put forward a legislative proposal on MDMS in September 2021.[2]

2. Two years later, in September 2023, the Regulatory Scrutiny Board (RSB)[3] issued a negative opinion on the Commission’s draft impact assessment report regarding the MDMS proposal. Following this opinion, the Commission started working on an updated impact assessment and it decided to change its approach and to propose two regulations: the Single Digital Booking and Ticketing Regulation (‘SDBTR’) and the Multimodal Digital Mobility Service Regulation (‘MDMSR’).[4]

3. In March 2025, the complainant, a company, made a request for public access^[5] to the RSB’s negative opinion. In reply, the Commission refused access to the document in its entirety. In doing so, it relied on an exception under the EU legislation on public access to documents (Regulation 1049/2001), arguing that disclosure of the document would undermine its ongoing decision-making process^[6] on the legislative initiative.

4. The complainant asked the Commission to review its position (by making a ‘confirmatory application’), challenging the Commission’s application of the exception and stressing that a particularly high standard of transparency applies to legislative documents.

5. In its confirmatory decision of December 2025, the Commission confirmed its refusal of access. It underlined the sensitive nature of the legislative initiative and the difficulty to find consensus on it. The Commission added that it was under considerable external pressure and, to illustrate the point, it referred to a railway undertakings organisation (CER[7]) circumventing standard stakeholder dialogue procedures[8] and turning directly to the RSB by addressing a letter to its Chair. Finally, the Commission pointed out that the opinion is from September 2023 and that it has substantially revised the impact assessment in the meantime. Therefore, it considered that disclosure of the opinion would lead to misunderstandings and confusion, diverting the ongoing discussions from the policy options that are currently under consideration. 

6. Dissatisfied with this outcome, the complainant turned to the Ombudsman in April 2026.

The inquiry

7. The Ombudsman opened an inquiry into the Commission’s decision to refuse access to the requested RSB opinion under Regulation 1049/2001.

8. During the inquiry, the Commission provided additional views on the complaint, and the Ombudsman inquiry team inspected the RSB opinion as well as its cover note and the letter from the railway undertakings organisation CER referred to in the Commission’s confirmatory decision.

9. In the meantime, the Commission adopted its ‘Passenger Package’, consisting of three legislative proposals to simplify travel planning and booking and to ensure better protection for rail passengers.[9]

Arguments presented

10. In its confirmatory application, the complainant stressed the particularly high standard of transparency applying to legislative documents.^[10] It considered that neither the fact that the legislative proposal has not yet been adopted nor the assertion that is particularly sensitive (which the complainant considered not to be the case) can justify the refusal of access to the RSB opinion at issue. It contended that, rather than undermining the protection of public interests, public access to the RSB opinion would enrich the public debate and that it is for the Commission to prevent any adverse impact on its decision-making process stemming from external pressure^[11].

11. The Commission acknowledged, in its confirmatory decision, that the Court of Justice and the Ombudsman consider RSB opinions to constitute legislative documents, but it noted that this does not mean that the Commission cannot refuse access to them based on an individual assessment of the document concerned.

12. In this case, the Commission considered that the proposed regulations[12] are highly debated and touch upon commercially and strategically sensitive aspects of the transport and mobility sectors while also intersecting with broader debates on digital sovereignty, competition law and platform regulation, which increases the political sensitivity of the initiative, also amongst Member States. In view of this, the Commission stated that consensus on the initiative is challenging and that stakeholder positions are deeply polarised. In particular, the Commission referred to rail incumbents exerting considerable pressure and resorting to unconventional tactics to influence the Commission’s decision-making process. Specifically, CER circumvented standard stakeholder dialogue procedures and turned directly to the RSB, demonstrating that the Commission was under high external pressure.

13. Furthermore, the Commission indicated that the opinion dates back to September 2023 and that it thus concerns the previous MDMS impact assessment which has been revised substantially since then. In the Commission’s view, disclosure could lead to misunderstandings and confusion, and “would divert the ongoing discussion from the current policy measures and options, hence undermining the quality of stakeholders’ input, and potentially delaying the decision-making process on a crucial initiative”. Overall, the Commission contended that its ability to ensure the integrity, serenity, effectiveness and fairness of its decision-making process would be undermined if the RSB opinion were to be disclosed “given the internal nature of the document, the ongoing stage in the procedure, and the very sensitive nature of the content of the document”.

14. The Commission concluded that the complainant did not put forward any overriding public interest in disclosure and that it was not possible to grant meaningful partial access.

15. In its complaint to the Ombudsman, the complainant argued that external pressure is an argument in favour of transparency rather than against it. More specifically, it considered that the Commission must act as an independent arbiter and that it should not be only those with direct access to the Commission (such as CER) who should be able to influence the outcome. The complainant also pointed out that the ‘risk of public confusion’ is not an exception under Regulation 1049/2001.

16. The complainant added that, rather than being a purely internal preparatory document, the document at issue is a legislative document pertaining to the decision-making process on a critical piece of legislation for the transport sector to which a high standard of transparency applies. It claimed that making the RSB’s findings public would ensure a level playing field and that there is an overriding public interest in understanding why the RSB rejected the initial impact assessment in the context of the ongoing public debate on the legislative initiative.

17. In its additional views on the complaint, the Commission reiterated that the legislative process at issue has been a politically sensitive one. It explained that the RSB requested further substantiation of the problems to be addressed by the legislative initiative, which led the Commission to undertake a comprehensive review. Therefore, at the time of the access request, the RSB opinion of 2023 no longer reflected the evolving state of the Commission’s work, and its disclosure would have undermined the integrity of the ongoing decision-making process. More specifically, according to the Commission, giving public access to the RSB opinion of September 2023 would, at the time of the confirmatory decision, have exposed the Commission to undue external pressure, compromised the RSB’s independence and created confusion among stakeholders.

18. The Commission considered that the letter from CER illustrates the above and it concluded that no stakeholders had privileged access to the September 2023 opinion while all interested stakeholders now have access to the revised impact assessment and the corresponding RSB opinion^[13].

The Ombudsman's assessment

19. The EU Treaties attach a fundamental importance to the openness of the EU’s decision-making process and the possibility for EU citizens to participate in the democratic life of the Union. Openness and public participation are even more important when the EU institutions act in their legislative capacity. In view of this, the Ombudsman has consistently held that the public should be allowed to scrutinise all information forming the basis of a legislative act.[14]

20. EU case-law has already established that impact assessment reports and the accompanying RSB opinions constitute important elements of the EU legislative process,[15] and are thus ‘legislative documents’ within the meaning of Article 12(2) of Regulation 1049/2001.[16] The document at issue in this inquiry is therefore a legislative document, to which the highest standards of transparency must apply. The exception invoked by the Commission to refuse public access to the document must therefore be applied all the more restrictively.

21. To justify the refusal of access in this case, the Commission stressed the sensitivity of the legislative initiative, the deep polarisation of stakeholder positions and the fact that CER contacted the Chair of the RSB directly. Overall, the Commission considered that it was under high external pressure and that the RSB’s independence would have been compromised by disclosing the opinion.  

22. The Ombudsman notes that the fact that a legislative initiative is controversial or particularly sensitive does not justify, in itself, refusing access to the related documents.[17] In this case, upon inspecting the requested RSB opinion, the Ombudsman is not convinced that its content is particularly sensitive. Rather, the RSB provided the Commission with recommendations on how to better substantiate its legislative proposal(s) as regards MDMS.

23. EU case-law recognises the risk of external pressure as a legitimate ground for restricting access to documents based on the need to protect the decision-making process. However, the reality of such external pressure must be established with certainty, and ‘tangible evidence’ must be adduced to show that there is a reasonably foreseeable risk that the decision would be substantially affected owing to that external pressure.[18]

24. Interest representation, be it by professional groups, consumer groups or members of the public, is part of the “generic elements of any democratic law-making process”[19]. It reflects the fact that the public, and specific interest groups, have a legitimate interest in following and participating in the legislative process. For all interests to be in a position to share informed views during ongoing legislative debates, however, it is of particular importance that there is, to the greatest extent possible, a level-playing field in terms of access to information.

25. The letter from CER illustrates that stakeholders have indeed attempted to inform the Commission’s decision-making process as regards MDMS. While the Ombudsman thus appreciates that, in this case, there was external pressure, she considers that the Commission has not explained why such external pressure would have been further increased due to the disclosure of the RSB opinion.

26. Even if it were increased, she considers that the Commission did not establish, in this case, that it was reasonably foreseeable that external pressure would have seriously undermined its decision-making process. Specifically, the Ombudsman is not convinced that external pressure, in the form of the CER letter in question, would be capable of impeding the Commission’s capacity to act in a fully independent manner and exclusively in the general interest[20]. 

27. In any case, the Court of Justice has held that it is for the Commission to prevent any adverse impact on its decision-making process arising from external pressure[21] . In that regard, the Ombudsman understands that the Commission has already put in place rules to ensure the independence of the RSB.[22]

28. In the same vein, the Commission argued that the requested RSB opinion dates back to September 2023 and thus it no longer reflected the evolving state of the Commission’s impact assessment work at the time of the confirmatory decision. Therefore, its disclosure would have created confusion among stakeholders and would have diverted attention from the policy options under discussion at that time, thus delaying the decision-making process and undermining its integrity.

29. The Ombudsman notes that the EU Courts have held on multiple occasions that the public is perfectly capable of understanding that certain documents are provisional in nature and may thus be subject to change.[23] Crucially, the Court of Justice recalled that the expression by the public or interested parties of their views on the policy options envisaged by the Commission before specific legislative proposals are announced “is an integral part of the exercise by EU citizens of their democratic rights”.[24]   

30. In this case in particular, the Ombudsman finds that disclosure of the September 2023 opinion would have allowed stakeholders to scrutinise how the Commission was giving effect to the RSB’s observations while the Commission’s decision-making process was still ongoing.

31. Overall, the Ombudsman is not convinced that disclosure of the requested RSB opinion would have increased the pressure on the Commission and, consequently, seriously affected, or further prolonged or complicated[25] the completion of the impact assessment and the adoption of the Commission’s legislative proposals.

32. In view of the above, the Ombudsman concludes that the Commission was not justified in applying the exception for the protection of its ongoing decision-making, and certainly not to the document in its entirety.

33. The Commission published, in the meantime, its legislative proposals in relation to the ‘Passenger Package’, accompanied by a Staff Working Document containing the revised impact assessment.^[26] This Staff Working Document reproduces the content of the September 2023 RSB opinion. However, due to the passage of time, the information now disclosed may no longer be of use for the purpose the complainant had intended, that is, to make its views known before the legislative proposal is adopted.

34. In light of the clear case-law that requires EU institutions to apply a particularly high standard of transparency to legislative documents, the Ombudsman considers the Commission’s refusal to grant public access to the document, even in part, constituted maladministration.

35. However, given that the content of the RSB opinion in question is now public and that the Commission published its legislative proposals, the Ombudsman considers that a recommendation to the Commission to reconsider its position on the public access request would not serve a useful purpose.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion:

The European Commission’s refusal to grant public access to the RSB opinion related to the legislative initiative on Multimodal Digital Mobility Services, even in part, constituted maladministration.

However, given that the content of the RSB opinion in question is now public and that the Commission published, in the meantime, its legislative proposals, the Ombudsman considers that a recommendation to the Commission to reconsider its position on the public access request would not serve a useful purpose.

The complainant and the European Commission will be informed of this decision.

Teresa Anjinho
European Ombudsman

Strasbourg, 25/06/2026

 

[1] For more information, see: https://www.europarl.europa.eu/RegData/etudes/BRIE/2026/789303/EPRS_BRI(2026)789303_EN.pdf.

[2] See: https://commission.europa.eu/strategy-and-policy/state-union/state-union-2021_en. 

[3] The Regulatory Scrutiny Board is an independent body within the Commission that advises the College of Commissioners. It provides central quality control and support for Commission impact assessments and evaluations at early stages of the legislative process. For more information, see: https://commission.europa.eu/law/law-making-process/regulatory-scrutiny-board_en.

[4] The Passenger Package of May 2026 also includes a proposed revision of the Rail Passenger Rights Regulation.

[5] Under Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents:

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32001R1049.

[6] Article 4(3), first subparagraph of Regulation 1049/2001.

[7] The Community of European Railway and Infrastructure Companies (CER) brings together close to 70 railway undertakings, their national associations as well as infrastructure managers and vehicle leasing companies: https://www.cer.be/about-us/who-we-are.

[8] The Commission explained that its services had organized stakeholder surveys and four public workshops throughout its re-drafting process, therefore ensuring constant stakeholder involvement.

[9] For more information, see: https://transport.ec.europa.eu/passenger-package_en.

[10] Referring to: recital 2 of Regulation 1049/2001; Judgment of the Court of Justice (Grand Chamber) of 4 September 2018, ClientEarth v European Commission, C-57/16 P, paragraph 92: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62016CJ0057; Decision in cases 2347/2023/MIK and 177/2024/MIG on the European Commission's refusal to give public access to documents concerning an impact assessment on the revision of the Food Information to Consumers Regulation: https://www.ombudsman.europa.eu/en/decision/en/193459.

[11] In view of paragraph 124 of ClientEarth v European Commission, cited above.

[12] At the time of the initial reply, only one proposal was envisaged. In its confirmatory decision, the Commission explained that it was pursuing two proposals and the Passenger Package also included a proposal to revise the Rail Passenger Rights Regulation.

[13] See: https://transport.ec.europa.eu/document/download/5fd64be7-44b8-4dd3-b084-05c35c5f2a8b_en?filename=SWD_2026_300_Impact_assessment.pdf.

[14] Recommendation on how the European Commission handled two requests for public access to the impact assessments and opinions of the Regulatory Scrutiny Board regarding the envisaged revision of REACH and the Mercury Regulation (case 1053/2023/MIK): https://www.ombudsman.europa.eu/en/recommendation/en/175628; Decision on the European Commission's refusal to give public access to documents concerning an impact assessment and the related opinion by the Regulatory Scrutiny Board on the revision of the Food Information to Consumers Regulation (cases 2347/2023/MIK and 177/2024/MIG): https://www.ombudsman.europa.eu/en/decision/en/193459#_ftn27.

[15] ClientEarth v European Commission, cited above, paragraphs 90-91.

[16] ClientEarth v European Commission, cited above, paragraph 93.

[17] See, for example, Judgment of the Court of Justice of 8 June 2023, Council v Pech, C-408/21 P, paragraph 67: https://curia.europa.eu/juris/document/document.jsf?text=&docid=274436&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=4725359.

[18] Judgment of the General Court of 21 April 2021, Pech v Council, T-252/19, paragraph 92: https://curia.europa.eu/juris/document/document.jsf?text=&docid=240171&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=1916898.

[19] Decision on how the European Parliament, the Council of the European Union and the European Commission handle requests for public access to legislative documents (OI/4/2023/MIK): https://www.ombudsman.europa.eu/en/decision/en/196680.

[20] ClientEarth v European Commission, cited above, paragraph 108.

[21] ClientEarth v European Commission, cited above, paragraph 124.

[22] Article 2(4) of the Decision of the President of the European Commission on an independent Regulatory Scrutiny Board of 23 January 2020, available at: https://commission.europa.eu/document/download/29d9b281-3d50-43a2-9a21-09777fdaae8d_en?filename=rsb_decision_23_01_2020_en.pdf; see also: Case 439/2023/KR on the composition of the European Commission's Regulatory Scrutiny Board and how it interacts with interest representatives: https://www.ombudsman.europa.eu/en/case/en/63502.

[23] Judgment of the General Court of 22 March 2018, De Capitani v Parliament, T-540/15, paragraph 102: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62015TJ0540&qid=1712587676840.

[24] ClientEarth v European Commission, cited above, paragraph 108.

[25] Ibid.

[26] See: https://transport.ec.europa.eu/document/download/5fd64be7-44b8-4dd3-b084-05c35c5f2a8b_en?filename=SWD_2026_300_Impact_assessment.pdf.