Background to the complaint

1. In December 2023, the European Council held a discussion on migration. In this context, it stated that it “strongly condemns all hybrid attacks, including the instrumentalisation of migrants by third countries for political purposes” and that it “remains determined to ensure effective control of the EU’s external borders.”[1]

2. In October 2024, the European Council recalled “its determination to ensure effective control of the [EU]’s external borders through all available means” and “reaffirm[ed] its commitment to countering the instrumentalisation of migrants for political purposes.” It added that “new ways to prevent and counter irregular migration should be considered, in line with EU and international law”.[2]

3. On 11 December 2024, the European Commission issued a ‘Communication on countering hybrid threats from the weaponisation of migration and strengthening security at the EU’s external borders’ (in the following, ‘the Communication’).[3] The Communication talks about challenges at the EU’s Eastern borders and the threat to public security that the “instrumentalisation” of migration poses. The Commission acknowledged that Member States may at times find themselves in situations where they have to take exceptional measures to address hybrid attacks and indicated that EU law allows for a limitation of fundamental rights such as the right to asylum. At the same time, the Commission recalled that any exceptional measures would have to be proportionate, strictly necessary and, if they are limiting certain fundamental rights, of a temporary nature. Finally, the Commission encouraged the Member States to carefully weigh all interests at stake and to cooperate closely with the EU and each other, inviting them to consult it and reassuring them of its support.

4. On the same day, the complainant, a researcher, made a request[4] for public access to documents to the Commission, asking for disclosure of documents related to that Communication.

5. In February 2025, the Commission adopted a decision identifying the following documents as falling within the scope of the complainant’s access request:

• the final version of the Communication (COM/2024/570 final),
• two notes by the Commission’s Directorate-General for Migration and Home Affairs dated 3 December 2024 on launching a fast-track inter-service consultation on the (then) draft Communication, with the Secretariat-General, the Commission Legal Service, the Directorate-General for Neighbourhood and Enlargement Negotiations, the Directorate-General for Justice and Consumers and the European External Action Service,
• a fast-track summary of the inter-service consultation that took place on 4 December 2024,
• a cover note related to the launch of the oral procedure for the adoption of the Communication, and
• a draft version of the Communication, as revised after the fast-track inter-service consultation.

6. The Commission provided the complainant with a link to the final version of the Communication (that had been published) and granted wide partial access to the three notes related to the procedural steps taken during the decision-making process, redacting personal data only.

7. As regards the fast-track summary and the revised draft Communication, the Commission denied access, relying on the need to protect its decision-making process[5] and, in relation to the summary, the need to protect the public interest as regards international relations[6].

8. In March 2025, the complainant asked the Commission to review its position (by making a ‘confirmatory application’), challenging the non-disclosure of the fast-track summary and the draft version of the Communication. The complainant did not take issue with the redaction of any personal data.

9. When the complainant did not receive a confirmatory reply from the Commission within the prescribed time limit (which is considered an implicit negative reply), the complainant turned to the European Ombudsman, raising concerns about the delay incurred by the Commission in dealing with his access request and about its refusal of public access.

The inquiry

10. The Ombudsman opened an inquiry regarding the Commission’s implicit refusal to give public access under Regulation 1049/2001.

11. In the context of a strategic inquiry^[7], the Ombudsman had already found that the Commission’s systemic delays in processing public access requests amount to maladministration.^[8] Therefore, while the Ombudsman regretted the delay in the Commission’s response to the complainant’s confirmatory application, she did not open an inquiry into the reasons for the delay in this specific case.

12. As a first step, the Ombudsman asked the Commission to issue an explicit confirmatory decision.

13. The Commission subsequently issued a confirmatory decision, disclosing the draft version of the Communication in full and maintaining its position that, for the reasons invoked previously, access to the fast-track summary had to be refused. The complainant remained dissatisfied with the access granted. The Ombudsman inquiry team therefore proceeded to inspect the fast-track summary at issue, along with the documents that had been disclosed to the complainant.

Arguments presented

14. In its confirmatory decision, the Commission stated that disclosure of the fast-track summary would undermine the public interest as regards international relations. It argued that the document “contains information for internal use, in preparation of the Commission position on a sensitive topic relevant in the context of international relations of the EU, involving citizens of third countries and third country actors.” In reply to a previous argument by the complainant that it was not a secret that the EU has accused certain third countries of “instrumentalising” or “weaponising” migration, the Commission stated that the fast-track summary contains internal positions that are not necessarily expressed in the final Communication. The Commission added that it could not describe the content of the document in more detail as this would undermine the very interest it was trying to protect.

15. The Commission also considered that disclosure would seriously undermine its decision-making process, as it would prevent staff from expressing their views independently and freely going forward. In addition, disclosure might confuse the public by placing in the public domain preliminary statements that do not necessarily reflect the final Commission position. The Commission added that the circumstances that called for the issuing of the Communication in question were still present and may call for another communication or action by the Commission. In this context, third parties having an interest in influencing discussions could use the internal policy considerations contained in the fast-track summary in support of their own interests, which may be contrary to the EU’s interests. Referring to criticism by the public, including concerns that the Commission intended to legalise “push backs”, the Commission also argued that the risks stemming from the high political sensitivity of the still ongoing circumstances are real.  

16. The Commission clarified that both exceptions applied to the entire substantive content of the fast-track summary.

17. Concerning the need to protect international relations, the complainant challenged that the fast-track summary contains any sensitive information that has not already been disclosed, noting the highly critical language used in the Communication towards third countries. The complainant also noted that neither the fast-track summary nor the Communication itself concern any ongoing deliberations or negotiations. In light of all this, the complainant considered that the Commission had failed to establish an actual and serious risk that disclosure would entail.

18. As regards the need to protect the Commission’s future decision-making, the complainant contended that the arguments put forward by the Commission are vague and do not satisfy the burden of proof for an imminent risk as established by EU case-law. In the complainant’s view, the fast-track summary very likely does not contain the views of individual staff members but the final positions of the consulted services on the draft Communication. The complainant added that the Commission and its staff must be expected to deal with criticism from civil society when formulating and adopting contentious policies. The complainant also considered that precisely because the Communication was perceived as a ‘gamechanger’, there is an overriding public interest in determining whether and how the Commission addressed any criticism raised during its internal deliberations.

The Ombudsman's assessment

19. The EU institutions, bodies, offices and agencies enjoy a wide margin of discretion when determining whether disclosing a document would undermine the protection of the public interests listed in Article 4(1)(a) of Regulation 1049/2001, which include the public interest as regards international relations.[9] As such, the Ombudsman’s inquiry sought to assess if there was a manifest error in the Commission’s assessment in that regard.

20. The exception for the protection of international relations can be invoked if disclosure could harm the EU's international relations with countries other than Member States.[10] It is formulated in very general terms and is therefore not limited to documents related to international negotiations or to a dialogue with the authorities of a third country relating to the development of a public policy.[11]

21. Therefore, it is not a precondition for the applicability of this exception that the document concerned relates to negotiations or deliberations “in the realm of international affairs”, as argued by the complainant. The exception may thus prevent disclosure of an inter-institutional exchange on how to deal with a matter concerning third countries such as the one reflected in the fast-track summary at issue.

22. However, the risk that disclosure would undermine the EU’s international relations with third countries must be reasonably foreseeable and not purely hypothetical and be based on a concrete assessment of the content of the document to which public access is denied.[12]

23. In refusing access, the Commission referred to the sensitivity of the subject matter discussed and the fact that the views expressed during the consultation are not necessarily expressed in the final version of the Communication.

24. Based on the inspection conducted by the Ombudsman inquiry team, the Ombudsman finds that it does not appear manifestly wrong for the Commission to consider that disclosing the content of the fast-track summary would undermine the EU’s international relations with third countries. In addition, given the sensitive nature of the information at issue, the Ombudsman considers that the Commission provided the complainant with sufficient reasons for its decision to refuse access based on the exception for the protection of the public interest as regards international relations.

25. The public interests protected under Article 4(1)(a) of Regulation 1049/2001 cannot be superseded by another public interest that is deemed more important. This means that, if an institution considers that any of these interests could be undermined by disclosure, they must refuse to give access.

26. Thus, since the Ombudsman considers that it was not manifestly wrong for the Commission to rely on the international relations exception, it is not necessary to assess the applicability of the exception for the protection of a decision-making process that the Commission also invoked.

27. Finally, the Ombudsman notes that it is clear from the documents that have been disclosed which services have been involved in the decision-making process relating to the drafting of the Communication and how the consulted services replied (positively).

28. In light of the above, the Ombudsman finds that the Commission was justified in refusing to grant public access to the fast-track summary at issue.

Conclusion

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

There was no maladministration by the European Commission in refusing to give public access to the fast-track summary at issue based on the need to protect the public interest as regards international relations.

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

 

Teresa Anjinho
European Ombudsman

Strasbourg, 29/01/2026

 

[1] European Council meeting (14 and 15 December 2023) - Conclusions: https://www.consilium.europa.eu/media/68967/europeancouncilconclusions-14-15-12-2023-en.pdf.

[2] European Council meeting (17 October 2024) - Conclusions: https://www.consilium.europa.eu/media/2pebccz2/20241017-euco-conclusions-en.pdf.

[3] COM/2024/570 final, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52024DC0570.

[4] Under Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents: http://data.europa.eu/eli/reg/2001/1049/oj.

[5] In accordance with Article 4(3), second subparagraph of Regulation 1049/2001

[6] In accordance with Article 4(1)(a), third indent of Regulation 1049/2001.

[7] Strategic inquiry OI/2/2022/OAM on the time the European Commission takes to deal with requests for public access to documents: https://www.ombudsman.europa.eu/en/case/en/60766.

[8] Decision in the above strategic inquiry OI/2/2022/OAM: https://www.ombudsman.europa.eu/en/decision/en/175321.

[9] See judgment of the General Court of 11 July 2018, ClientEarth v Commission, case T-644/16, paragraphs 23 to 25: https://curia.europa.eu/juris/liste.jsf?num=T-644/16&language=en.

[10] Judgment of the Court of First Instance of 7 February 2002, Kuijer v Council of the EU, T-211/00, paragraphs 61 ff.: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:62000TJ0211.

[11] Judgment of the General Court of 10 September 2025, Smart Kid S.A v European Commission, T-337/24, paragraph 41: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62024TJ0337.

[12] Judgment of the Court of Justice of 3 July 2014, Council of the EU v in 't Veld, C-350/12 P, paragraph 64: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62012CJ0350.