Background to the complaint

1. On 6 December 2024, the Romanian Constitutional Court annulled the presidential elections in Romania after a first round held on 24 November 2024. The decision by the Constitutional Court was based on multiple reports from Romanian and international authorities claiming foreign influence, particularly through the illicit funding of a social media campaign.

2. On 13 January 2025, the complainant made a request for public access[1] to any exchanges or correspondence between the European Commission and Romanian authorities regarding the 2024 presidential elections in Romania. The complainant referred to an interview of former Commissioner Thierry Breton on French television, in which he allegedly suggested that the EU had a role in the annulment of the 2024 presidential elections in Romania.[2]

3. The Commission replied to the access request on 18 February 2025. It said that the requested documents form part of case files of pending investigations under the Digital Services Act (DSA).[3] These case files are, it said, covered by a general presumption of non-disclosure based on the exceptions for the protection of the purpose of investigations and commercial interests.[4]

4. The complainant subsequently asked the Commission to review its decision refusing access by submitting a ‘confirmatory application’.

5. Not having received a reply to his confirmatory application, the complainant first turned to the Ombudsman in April 2025.[5]

6. Following the Ombudsman’s request, the Commission replied to the confirmatory application in July 2025, maintaining its position that the requested documents are covered by a general presumption of non-disclosure.

7. Dissatisfied with the Commission’s reply, the complainant again turned to the Ombudsman in August 2025.

The inquiry

8. The Ombudsman opened an inquiry into how the Commission dealt with the complainant’s request for public access.

9. During the inquiry, the Ombudsman inquiry team inspected the documents at issue. The Ombudsman also asked the Commission to provide her with a list of the documents falling within the scope of the access request that could be shared with the complainant.

Arguments presented to the Ombudsman

10. In its initial reply, the Commission explained that it could not provide a detailed list of the documents it identified as falling within the scope of the complainant’s request, because they are covered by a general presumption of non-disclosure. It argued that the requested documents form part of case files of pending investigations under the DSA Regulation (DSA.100142 and DSA.100141). These investigations are ongoing as the Commission is gathering further evidence.

11. In the confirmatory application, the complainant argued that an overriding public interest in disclosure exists because the Romanian public has an interest in assessing the extent of foreign interference in the presidential elections, and the extent to which the Commission investigated the situation under the DSA Regulation. The complainant added that democratic decision-making in the EU might be affected if the Commission can potentially investigate all future national elections under the DSA. The complainant contended that, in the interview referred to in the initial request, former Commissioner Thierry Breton also mentioned the possibility of an investigation following the elections in Germany.

12. In its confirmatory decision, the Commission confirmed its reliance on a general presumption of non-disclosure in relation to ongoing investigations under the DSA, based on the need to protect the purpose of investigations and commercial interests.[6] Specifically, the Commission argued that the requested documents form part of case files of pending investigations under the DSA, the purpose of which is to ensure the proper functioning of the internal market for intermediary services.

13. The Commission referred to four conditions for applying a general presumption of non-disclosure established by EU case law.[7] First, the documents must form part of the same set of documents. Second, the documents must be subject to specific accessibility rules. Third, they must relate to a specific procedure that needs to be protected.  Fourth, in procedures where undertakings are obliged to submit to the Commission possibly sensitive information, the commercial interests of third parties can be protected jointly with the purpose of investigations.[8] The Commission argued that DSA investigations are comparable and have strong procedural similarities with other types of Commission investigations aimed at assessing compliance with EU law, such as merger control proceedings or State aid investigations, for which the Court has already recognised a general presumption of non-disclosure.

14. The Commission also argued that there is no overriding public interest in disclosure, as the complainant’s general considerations about transparency and integrity of elections do not prevail over the reasons justifying the refusal to disclose the requested documents.

15. In the complaint to the Ombudsman, the complainant noted that, in its decision refusing public access, the Commission established a legal regime that denies the application of Regulation 1049/2001 to essentially any case file under the DSA. The complainant also said that the Commission had ignored its arguments concerning the existence of an overriding public interest. The complainant added that, without access to the documents, it was impossible to prove that the disclosure of these specific documents serves a public interest.

16. In reply to the Ombudsman’s request for a list of documents that could be shared with the complainant, the Commission explained that such a detailed list was strictly confidential. The Commission agreed, nevertheless, to share a description of the documents with the complainant, which reads as follows: “The identified documents span across a period of about 5 months until the receipt of the access to document request by the complainant, i.e. January 2025. The documents are exchanges between the Commission and the Romanian authorities regarding certain aspects of the first round of Presidential elections in Romania in November 2024, in relation to the supervision of very large online platforms’ obligations under the Digital Services Act. These include exchanges prior to and following the elections.”

The Ombudsman's assessment

On the refused access

17. The EU Courts have recognised that EU institutions may refuse public access to documents based on a ‘general presumption’ of non-disclosure for certain categories of documents.[9] This means that the institution concerned does not have to examine the documents in question individually, that is, it does not have to assess how their disclosure would specifically and actually undermine the protected interests. Rather, the institution may assume that, because the documents in question fall within a certain category, disclosure of any of them would undermine the protected interests.

18. It is only in certain cases that the EU Courts have recognised the possibility for institutions to rely on a general presumption of non-disclosure. For example, the Courts established that documents relating to State aid procedures, merger control proceedings, infringement procedures or documents belonging to bids submitted by the tenderers in a public procurement procedure may be covered by general presumptions.[10]

19. The Ombudsman notes that, to date, the EU Courts have not recognised a general presumption of non-disclosure related to documents belonging to DSA investigations, such as the documents at issue in this case. The relevant case law could therefore at best be applied by analogy. This is acknowledged by the Commission in the confirmatory decision, where it mentions that DSA investigations are “comparable and have strong procedural similarities” with other types of Commission investigations in relation to which the Courts have recognised a general presumption.

20. In view of this, the Ombudsman inquiry team carried out an inspection of the documents at issue. The inspection showed that the documents are exchanges between the Commission and the Romanian authorities, which took place between September 2024 and January 2025 and pertain to two pending investigations under the DSA Regulation. They are part of the case files for the proceedings DSA.100141 and DSA.100142. Their content relates to the first round of the presidential elections in Romania in November 2024, and contains operational details provided by the Romanian authorities to the Commission under the assumption that they would not be shared further. Given the sensitive nature of the documents, it is difficult to provide more details without disclosing information that the Commission considers to be confidential.

21. Based on the inspection, the Ombudsman finds it reasonable to consider that the documents’ disclosure would undermine the purpose of the DSA investigations carried out by the Commission in this case and also the commercial interests of TikTok’s parent company, which shared sensitive information in the context of the investigations.

22. In other words, even if the Commission had carried out an individual assessment of the documents at issue, the Ombudsman considers that the Commission would have been justified in relying on the exceptions pertaining to the protection of the purpose of investigations and the commercial interests of a third party to refuse access to them.

23. However, and irrespective of whether the general presumption applies in this case, disclosure may still be warranted if there is an overriding public interest in disclosure.[11]

24. In its confirmatory decision, the Commission explained that the arguments put forward by the complainant as regards the need to secure transparency and integrity in the Romanian presidential elections and possibly in elections in other countries, such as in Germany, do not establish the existence of an overriding public interest because they are too general. The Commission considered that the public interest is better served by protecting the confidentiality of the information gathered during the investigations.

25. The Ombudsman recognises that the circumstances surrounding the decision taken by the Romanian Constitutional Court in December 2024 to annul the presidential elections attracted significant attention. She finds, however, that the complainant’s arguments are not specific as to how the public interest would be best served by disclosure of the requested documents.

26. In view of the above, the Ombudsman considers reasonable the Commission’s position that the complainant’s general references to transparency do not outweigh the public interest in allowing the Commission to protect the purpose of its ongoing investigations.

On the list of identified documents

27. According to EU case-law, the application of a general presumption does not exempt an EU institution from its duty to identify the documents falling within the scope of a request and from providing the requester with the list of those documents. This is because, in the absence of such a list, it would be difficult for requesters to rebut that presumption.[12]

28. In this context, the Ombudsman has consistently taken the view[13] that it is also a matter of good administration to provide applicants with a list of documents identified as falling within the scope of a public access request, unless the very disclosure of the list would undermine the interest(s) to be protected.[14] In those instances where a list cannot be provided, it is important that the documents are described in such a way as to enable the applicant to understand the number and nature of the documents at stake.

29. In this case, the Commission did not provide the complainant with a list of identified documents, neither at initial nor at confirmatory stage. The Commission merely described the documents as being part of case files for pending investigations under the DSA. The Ombudsman, when opening the inquiry, therefore asked the Commission for a list of identified documents that could be shared with the complainant.

30. The Commission replied that it could not provide such a list, as it was confidential, but agreed to provide a description of the category of documents concerned (see paragraph 16 above).

31. Based on the inspection and given the sensitivity of the requested documents, the Ombudsman finds reasonable the Commission’s decision to provide only a description of the documents. She agrees that disclosing a list of documents would reveal information about their content that could potentially undermine the interests the Commission is seeking to protect.

32. The Ombudsman regrets, however, that the Commission failed to provide the complainant with the number of documents identified.[15] That said, the description that the Commission provided during the Ombudsman’s inquiry gives the complainant sufficient detail to understand what the documents are about, namely their nature (exchanges with the Romanian authorities) and their timing (between September 2024 and January 2025). Combined with information that the Commission already gave to the complainant in the initial and confirmatory replies about the DSA investigation into TikTok, the description allows the complainant to correctly identify the category of documents at issue in this case.

33. For the above reasons, the Ombudsman concludes that no further inquiries into the aspect of the inquiry related to the list of identified documents are justified.

Conclusions

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

Based on an inspection of the requested documents, the Ombudsman finds that it was reasonable for the Commission to refuse access given their sensitive nature.

While the Commission did not provide a detailed list of documents, during the inquiry, it described the category of documents concerned in more detail.

The Ombudsman therefore concludes that no further inquiries are justified in this case.

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

Teresa Anjinho
European Ombudsman

Strasbourg, 19/12/2025

 

[1] Under the rules set out in Regulation 1049/2001, available at: https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32001R1049

[2] The complainant linked to the interview available at https://rmc.bfmtv.com/actualites/international/on-l-a-fait-en-roumanie-thierry-breton-reagit-aux-ingerences-de-musk-en-allemagne-avec-l-afd_AN-202501090232.html (in French).

[3] The Digital Services Act (DSA), adopted in October 2022, is an EU regulation establishing a comprehensive framework for digital services accountability, content moderation, and platform transparency across the EU. Its purpose is to prevent illegal and harmful activities online and the spread of disinformation. See Regulation 2022/2065 on a Single Market for Digital Services (Digital Services Act): http://data.europa.eu/eli/reg/2022/2065/oj.

[4] Set out in Article 4(2), third indent and Article 4(2), first indent of Regulation 1049/2001 respectively.

[5] Case 827/2025/PVV concerning the Commission’s failure to adopt a confirmatory decision within the applicable time limits.

[6] The Commission explained, in the confirmatory decision, that it had opened proceedings against TikTok on 17 December 2024, and referred to its press release available at: https://ec.europa.eu/commission/presscorner/detail/en/ip_24_6487. The purpose of the investigation, the Commission said, was to assess whether TikTok’s parent company manages the risks to elections or civic discourse, linked in particular to its recommender systems and its policies on political advertisements.

[7] The Commission referred in particular to a judgment of the General Court of 4 October 2018, Daimler v Commission, T-128/14, paragraphs 138-140, available at: https://curia.europa.eu/juris/liste.jsf?language=en&num=T-128/14.

[8] The Commission cited the judgment of the General Court of 2 October 2024, TotalEnergies Marketing Nederland NV v European Commission, T-332/22, paragraph 28, available at: https://curia.europa.eu/juris/liste.jsf?language=en&td=ALL&num=T-332/22.

[9] Judgment of the General Court in case T-380/08, Netherlands v Commission, paragraph 35, available at: https://curia.europa.eu/juris/liste.jsf?num=T-380/08&language=EN.

[10] For an exhaustive list of all recognised general presumptions of non-disclosure to date, see paragraphs 95 and 96 of the judgment of the General Court of 10 September 2025, Nouwen v Council, T‑255/24, available at: https://curia.europa.eu/juris/liste.jsf?language=en&td=ALL&num=T-255/24.

[11] See Judgment of the Court of Justice of 11 May 2017, Sweden and Spirlea v Commission, C-562/14 P, paragraph 46, available at: https://curia.europa.eu/juris/liste.jsf?language=en&num=C-562/14.

[12] Judgment of the General Court of 28 May 2020, case T‑701/18, Liam Campbell v European Commission, paragraphs 41-44, available at: https://curia.europa.eu/juris/liste.jsf?num=T-701/18&language=EN

[13] See, for example, Decision on the European Securities and Markets Authority's refusal to give public access to exchanges with the European Commission on the preparation of 'equivalence decisions' in relation to the United Kingdom (case 1278/2022/JK), paragraph 34, available at: https://www.ombudsman.europa.eu/en/decision/en/171366.

[14] In line with the Campbell case referred to above, in particular paragraph 44.

[15] As the Ombudsman suggested in the context of a previous inquiry in case 1278/2022/JK (see footnote 13 above).