Background to the complaint

1. In May 2024, the ‘Critical Raw Materials Act’ (‘CRMA’)[1] entered into force. This EU Regulation aims to ensure access to a secure and sustainable supply of essential minerals and materials with high economic importance and significant supply risk that are crucial for digital, green, and defence technologies.

2. Under the CRMA, certain mining, processing and recycling projects can be recognised as a ‘Strategic Project’[2], meaning that these projects acquire a priority status that requires national authorities and courts to carry out any administrative or judicial procedure related to the permit-granting of those projects as swiftly as possible. The status as Strategic Project also entails advantages in terms of easier access to financing.  

3. Decisions on the designation of the status of Strategic Project are taken by the European Commission, after consulting the ‘Critical Raw Materials Board’ that consists of Member State experts.

4. In May 2024, the Commission published the first call for applications for the recognition of raw material projects as Strategic Projects under the CRMA.[3] In March 2025, the Commission designated the first 47 raw material projects within the EU as Strategic Projects.[4] In June 2025, the Commission designated 13 raw material projects located in countries outside the EU as Strategic Projects.[5]

5. In April 2025, the complainant, an environmental campaigner, requested[6] from the Commission public access to (i) its general methodology for assessing applications for the status of Strategic Project as well as (ii) the relevant application and assessment of a specific project that had applied for the recognition as Strategic Project but had not been designated as such.

6. In reply, the Commission provided the complainant with links to its website containing information about its methodology in assessing project applications[7] and the opinion[8] of the Critical Raw Materials Board on the proposed list of Strategic Projects established in the first round of applications.

7. As for the remaining documents, the Commission refused to give public access, relying on the need to protect the public interest as regards defence and military matters and financial and economic policies of the EU[9] and the need to protect the commercial interests of the company concerned[10]. Concerning the latter, the Commission argued that, since the project application had been unsuccessful, disclosure would harm the competitive standing in the market of the company concerned, its access to finance and its interest in re-applying in future calls.

8. In July 2025, the complainant asked the Commission to review its position (by making a ‘confirmatory application’), arguing − amongst other things − that there is an overriding public interest in disclosure.

9. When they 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 Ombudsman, raising concerns about the delay incurred by the Commission in dealing with their access request and about its refusal to disclose the documents at issue.

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^[11], the Ombudsman had already found that the Commission’s systemic delays in processing public access requests amount to maladministration.^[12] 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. However, the Ombudsman is aware that the Commission continues to incur delays in dealing with public access requests and is closely monitoring the matter based on complaints submitted to her.

12. As a first step in the inquiry, the Ombudsman asked the Commission to issue an explicit confirmatory decision. However, when the delay persisted, the Ombudsman inquiry team proceeded to inspect the documents at issue.

13. The Commission then issued a confirmatory decision (almost four months after the relevant time limit had expired), identifying 18 documents consisting of the relevant project’s application and supporting documents, and the Commission’s assessment of that application. The Commission maintained its position that access to these documents had to be refused to protect the commercial interests of the company concerned, arguing that a general presumption of non-disclosure applied. The Commission no longer relied on the exception for the protection of the public interest as regards defence and military matters and the financial and economic policies of the EU.

14. The complainant remained dissatisfied with this outcome. The Ombudsman inquiry team therefore continued with the inspection of the documents at issue.

Arguments presented

15. In their confirmatory application, the complainant contended that the Commission had not sufficiently demonstrated that disclosure of the documents would cause a reasonably foreseeable and non-hypothetical harm to the commercial interests of the company concerned.

16. The complainant also argued that the information that applicants for Strategic Projects have to provide constitutes corporate information that companies are anyhow required to make public in view of their general reporting obligations under the ‘Transparency Directive’[13].

17. The complainant also considered that there is an overriding public interest in disclosure, due to the environmental and social impacts that the project is expected to have, noting that the documents are likely to contain information related to emissions into the environment. In addition, given that raw material projects are publicly funded, fast-tracked and granted regulatory privileges, the public has an interest in knowing how Strategic Projects are assessed and selected.

18. In its confirmatory decision, the Commission noted that the Transparency Directive applies only to issuers whose securities are admitted to trading on a regulated market situated or operating within a Member State and that the company concerned had not publicly disclosed the documents at issue.

19. The Commission also argued that a general presumption of non-disclosure applied to the documents. It considered that the documents at issue were similar to bids of tenderers in a public procurement procedure, for which the EU courts have recognised the use of a general presumption.[14] In addition, the Commission referred to Article 46 of the CRMA that requires information acquired under that Regulation to be used only for the purpose for which it has been provided and that the Commission shall protect trade and business secrets.

20. At the same, the Commission assessed the content of the documents. Specifically, the Commission said that the documents contain “the explanation of [the company’s] business plan, methodology, expertise, innovative approach, the involvement of experts and other information bearing commercial value as to how the [company] intends to implement its project should it be recognised with the status of Strategic Project. The documents reflect specific technological know-how and detailed operational aspects concerning the implementation of the project, including timetables, descriptions of actions, and milestones”. The Commission took the view that disclosure of the requested documents would thus expose to third parties the commercial strategy and know-how of the company concerned, including to potential competitors who could use this information in future calls for proposals for similar projects, thereby presenting a real and non-hypothetical risk of serious harm to the applicant’s commercial interests.

21. In addition, the Commission considered that revealing the assessment of the project at issue and the specific reasons why it did not satisfy the criteria to be recognised as a Strategic Project would affect the reputation of the company concerned, which could, in turn, negatively impact on any future application it might wish to submit.

22. With regard to the existence of an overriding public interest, the Commission dismissed the arguments put forward by the complainant as too general in nature. Specifically, it argued that the complainant failed to explain how disclosure of the requested documents would mitigate the alleged environmental risks linked to the project at issue. It added that, the recognition or non-recognition of the strategic status would not, in principle, impact the existence of such projects or their accompanying environmental and social risks, as these exist independently of the application or potential recognition under the CRMA and depend instead on the implementation phase at national level.

23. The Commission also stated that the information contained in the documents at issue relates to a summary of how the monitoring, prevention, and minimisation of environmental impacts is planned to be carried out, should the project be successful. However, it found that this information was merely prospective, including because the project application had been unsuccessful. Therefore, any information on emissions into the environment would clearly fall under the category of hypothetical or unforeseeable emissions that would not enable the public to understand what is effectively released into the environment.[15]

24. In their correspondence with the Ombudsman, the complainant noted that the company concerned seems to have re-applied for recognition of the project at issue as a Strategic Project in the second call for proposals that was open until mid-January 2026, and that the project was receiving political support. In light of this, they contended that disclosure was needed to enable public scrutiny and to ensure that the political advocacy for the project does not undermine its proper assessment by the Commission.

25. The complainant also contested the general presumption of non-disclosure invoked by the Commission, arguing that Strategic Project applications and procurement bids are intrinsically different categories of documents.

26. The complainant further reiterated their argument that the requested documents are likely to contain detailed environmental information, including information related to emissions, water use, pollution, biodiversity impacts, hazardous substances, noise, energy use, and waste, as well as information on the social and environmental impacts of the projects. Referring to the Aarhus Regulation[16], the complainant contended that such information must be disclosed irrespective of its commercial confidentiality.[17]

27. Finally, the complainant contended that the Commission had failed to comply with its obligation under the CRMA to publish a list of applications received, a list of projects recognised as Strategic Projects, and the reasons for their recognition or non‑recognition.[18]  

The Ombudsman's assessment

On the protection of commercial interests

28. EU institutions can refuse to give public access to a document requested under Regulation 1049/2001, if its disclosure would likely result in reasonably foreseeable and non-hypothetical harm to the commercial interests of a natural or legal person, including intellectual property. This means that EU institutions cannot rely on the need to protect commercial interests simply because information relates to a company or its business relations. The exception serves to protect commercially sensitive information, such as information relating to the business strategy or expertise of a company.[19] Accordingly, when invoking this exception, EU institutions have to explain how disclosure could specifically and actually undermine the legitimate commercial interests at stake.[20]

29. The Commission invoked the need to protect the commercial interests of the company concerned, and it considered that a general presumption of non-disclosure could be applied to the documents at issue. Specifically, the Commission argued that the procedure for the recognition of raw material projects as Strategic Projects under the CRMA was similar to public procurement procedures, for which the EU courts have recognised that a general presumption might be used. Where this is the case, the EU institution concerned does not have to examine the documents at issue individually nor explain the specific harm that their disclosure would entail. Rather, it is presumed that, because the documents are part of a particular file or category, they must remain confidential in their entirety.

30. However, despite this argument, the Commission described the content of the documents at issue and assessed whether there was a real and non-hypothetical risk that the disclosure of their content would undermine the commercial interests of the company concerned and whether there was an overriding public interest in disclosure. In other words, the Commission carried out an individual examination of the documents at issue, which means that it did not actually rely on the general presumption of non-disclosure.

31. The Ombudsman has therefore assessed the Commission’s detailed arguments for refusing access, based on the content of the documents at issue.

32. The Commission stated that the documents contain information on the specific technological know-how of the company concerned and detailed operational aspects relating to the implementation of the raw material project at issue. It argued that disclosure would thus reveal the company’s commercial strategy and know-how to third parties, which would undermine its competitive position in the market. In view of its assessment of the project, based on which it had decided not to designate it as a Strategic Project under the CRMA, the Commission contended that disclosure would also affect the company’s reputation and have a negative impact on a possible future application that the company might wish to submit under the CRMA.

33. The inspection carried out by the Ombudsman inquiry team showed that the requested documents contain detailed commercial information about the company’s business strategy, expertise and project planning throughout, as described by the Commission. In addition, it appears that the company concerned has in the meantime submitted a new application for the recognition of the project as a Strategic Project, which is currently under assessment. The Ombudsman therefore considers it reasonable to regard the content of the documents as commercially sensitive and, thus, that disclosure would undermine the commercial interests of the company concerned.

On the application of the Aarhus Regulation and the existence of an overriding public interest

34. Where an EU institution has established that granting public access to documents would reasonably undermine the protection of commercial interests, it must refuse access unless there is an overriding public interest in disclosure.[21]

35. In this regard, the complainant, referring to the Aarhus Regulation[22], argued that the documents are likely to contain environmental information and that such information would have to be disclosed irrespective of its commercial sensitivity.

36. The Aarhus Regulation aims at ensuring that ‘environmental information’ is progressively made available and disseminated to the public.[23] The purpose of access to this information is to promote public participation in the decision-making process, thereby increasing accountability and contributing to public awareness and support for the decisions taken. A public interest to access ‘environmental information’ is thus deemed to exist and the Commission should take this into account when assessing requests for public access.[24]

37. The public interest in accessing ‘environmental information’ does not automatically override the interest to be protected by non-disclosure of the requested documents. Instead, it must be assessed based on an individual examination of the documents and their context.[25] This is different where a specific kind of ‘environmental information’ is concerned, that is information which ‘relates to emissions into the environment’. For this specific kind of environmental information, an overriding public interest is presumed to exist when it comes to the protection of commercial interests.[26]

38. In this case, as the Commission noted, the environmental and social risks associated with this project would persist regardless of whether it is designated as a Strategic Project under the CRMA. If the project goes ahead in any way, the public interest in accessing related environmental information remains valid. Therefore , any information related to emissions into the environment contained in project applications like the one at issue could not be regarded as merely prospective simply because the project application was unsuccessful. In this regard, the Commission’s position summarised in paragraphs 22 and 23 above seems contradictory.

39. The inspection of the documents confirmed that they contain information qualifying as ‘environmental information’ under the Aarhus Regulation. However, this information is rather general in nature and does not, for example, include specific details on foreseeable emissions into the environment. Given that the documents do not contain information related to emissions (for which an overriding public interest is deemed to exist), the public interest in disclosure could be considered to supersede the commercial interests at stake only if it were to serve a specific public interest that is deemed more important.[27]

40. In this regard, the Ombudsman notes that the company concerned has already made certain environmental information about the envisaged raw material project publicly accessible. This includes a recent scoping report that was drawn up after the company had applied for its project to be recognised as a Strategic Project under the CRMA. The scoping report outlines the methodology and details of the envisaged environmental and social impact assessment that has yet to be concluded.

41. In addition, the complainant contended that there was an overriding public interest in disclosure, given that the company concerned has re-applied for recognition of the project at issue as a Strategic Project in the current call for applications and that the project seems to be supported politically. However, it is unclear how disclosure of an unsuccessful application would ensure a proper assessment of a new application for the same project. Nor is there anything to suggest that the assessment of the current application by the Commission is in any way inadequate or subject to undue external interference. In any case, the fact that the company concerned re-applied also means that its commercial interests at stake remain valid.

42. The fact that the documents contain certain environmental information is therefore not such as to set aside the need for protecting the commercial interests at issue.

43. As regards the complainant’s argument that public access was needed, because the Commission failed to publish a list of all raw material projects that have submitted an application to be recognised as a Strategic Project, the Ombudsman is not aware of such an obligation. According to the CRMA, the Commission is only required to publish decisions recognising a raw material project as a Strategic Project,[28] which it has done.[29] There is no such obligation with respect to applications that were unsuccessful applications.

Other considerations

44. Finally, the inspection of the documents also showed that some of them contain the personal data of individuals. For such information to be disclosed, applicants must first have established that there is a need to obtain access and that need has to be in the public interest.[30] The Ombudsman notes that the complainant has not put forward such a necessity for the disclosure of any personal data.

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 requested documents.

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

Teresa Anjinho
European Ombudsman

Strasbourg, 12/03/2026

 

[1] Regulation 2024/1252 of 11 April 2024 establishing a framework for ensuring a secure and sustainable supply of critical raw materials: http://data.europa.eu/eli/reg/2024/1252/oj.

[2] See, in particular, Articles 6(1), 7 and 10 of Regulation 2024/1252.

[3] Available at: https://single-market-economy.ec.europa.eu/calls-expression-interest/call-applications-strategic-projects-under-critical-raw-materials-act_en.

[4] The Commission’s decision listing all projects that were designated as strategic projects within the EU is available at: https://webgate.ec.europa.eu/circabc-ewpp/d/d/workspace/SpacesStore/1958718b-21e9-40f4-9c9f-42a58dc4c5a3/download.

[5] The Commission’s decision listing all projects that were designated as strategic projects outside the EU is available at: https://single-market-economy.ec.europa.eu/document/download/808502c2-21c7-4ca8-855f-ff0b528f91c4_en?filename=C_2025_3491_1_EN_ACT_part1_v4.pdf.

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

[7] https://single-market-economy.ec.europa.eu/sectors/raw-materials/areas-specific-interest/critical-raw-materials/strategic-projects-under-crma_en, see, in particular the ‘guide for applicants’ and the ‘FAQ’ section that includes the templates for the individual assessment report and consensus report.

[8] Available at: https://webgate.ec.europa.eu/circabc-ewpp/d/d/workspace/SpacesStore/67bb9f09-7463-4f5e-9490-69bb793102f4/download.

[9] In accordance with Article 4(1)(a), second and fourth indent of Regulation 1049/2001.

[10] In accordance with Article 4(2), first indent of Regulation 1049/2001.

[11] 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.

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

[13] Directive 2004/109/EC on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market: https://eur-lex.europa.eu/eli/dir/2004/109/2024-01-09.

[14] The Commission referred to the judgment of the General Court of 26 March 2020, ViaSat v Commission, T-734/17, paragraphs 43 and 55: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62017TJ0734.

[15] The Commission referred to the judgment of the General Court of 21 November 2018, Stichting Greenpeace Nederland and PAN Europe v Commission, T-545/11 RENV: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62011TJ0545(01).

[16] Regulation 1367/2006 on the application of the provision of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to the Community institutions and bodies (‘Aarhus Regulation’): http://data.europa.eu/eli/reg/2006/1367/oj.

[17] The complainant referred, in particular, to Article 6(1) of the Aarhus Regulation.

[18] The complainant referred to Article 7(8) of the CRMA.

[19] See, for example, judgment of the General Court of 7 February 2018, PTC v EMA, T-718/15: https://curia.europa.eu/juris/document/document.jsf?text=&docid=199044&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=13039858.

[20] See, for example, judgment of the Court of Justice of 4 September 2018, ClientEarth v Commission, C‑57/16 P, paragraph 51: https://curia.europa.eu/juris/document/document.jsf?text=&docid=205322&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=19039430.

[21] In accordance with Article 4(2) of Regulation 1049/2001.

[22] Regulation 1367/2006, see footnote 16 above.

[23] Article 1(1) of the Aarhus Regulation.

[24] See also the Ombudsman’s Decision in cases 1132/2022/OAM and 1374/2022/OAM (https://www.ombudsman.europa.eu/en/decision/en/168684), paragraph 34.

[25] See also the Ombudsman’s Decision in cases 1132/2022/OAM and 1374/2022/OAM, paragraph 35.

[26] In accordance with Article 6(1) of the Aarhus Regulation.

[27] See also joint cases 1132/2022/OAM and 1374/2022/OAM (footnote 24 above) and judgment of the General Court of 18 June 2025, Arysta Lifescience v EFSA, T-222/23: https://infocuria.curia.europa.eu/tabs/document/T/2023/T-0222-23-00000000RD-01-P-01/ARRET_NP/301285-EN-1-html.

[28] In accordance with Recitals (14) and (16) of the CRMA.

[29] See footnotes 4 and 5 above.

[30] In accordance with Article 9(1) of Regulation 2018/1725 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data: https://eur-lex.europa.eu/eli/reg/2018/1725/oj/eng.