Hybrid: Remote and at the Ombudsman’s office

Present

Legal Service of the Commission

• Legal Adviser, Assistant to the Director-General
• Member of the Legal Service, INST team
• Member of the Legal Service, Coordinator for Access to Documents

Secretariat-General of the Commission

Unit A.2 and Unit A.3

• Legal and Policy Officer - Access to Documents
• Legal and Policy Officer - Access to Documents
• Legal and Policy Officer - Access to Documents
• Policy Officer, Transparency & Ethics Unit

European Ombudsman

• Lampros Papadias, Head of Cabinet
• Diana Riochet, Legal Adviser in the Cabinet
• Alice Bernard, Inquiries Officer
• Michaela Gehring, Inquiries Officer
• Tanja Ehnert, Inquiries Coordinator
• Maria Resende, Inquiries Trainee

Purpose of the meeting

The purpose of the meeting was for the Ombudsman inquiry team to clarify some matters in relation to the Commission’s refusal to grant public access to a “note to the file” on the advisory opinion of the International Court of Justice on the legal consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory (‘ICJ advisory opinion’).

Introduction and procedural information

The Ombudsman inquiry team introduced themselves, thanked the Commission representatives for meeting with them and set out the purpose of the meeting. They outlined the legal framework that applies to meetings held by the Ombudsman, in particular, that the Ombudsman would not disclose any information identified by the Commission as confidential, neither to the complainant nor to any other person outside the Ombudsman’s Office, without the Commission’s prior consent.^[1]

The inquiry team explained that they would draw up a draft report on the meeting to be sent to the Commission to ensure that the contents were factually accurate and complete. The meeting report would then be finalised, included in the file and provided to the complainant. No confidential information would be included in the report or otherwise provided to the complainant or any third party.

Information exchanged

The Ombudsman inquiry team asked for clarifications on the justifications provided by the Commission in its confirmatory decision to refuse public access to the entire document in order to protect legal advice. As a first step, the inquiry team invited the Commission to clarify whether it conducted an individual assessment of the document, or whether it relied exclusively on a general presumption of non-disclosure.

The Commission representatives confirmed that an individual assessment had been carried out and that it had been concluded, based on that assessment, that the disclosure of the document would undermine the protection of legal advice.

The Ombudsman inquiry team sought clarifications on the recipients of the document at issue. The Commission representatives stated that the document at issue, a ‘note to the file’, is of a purely internal nature and was not circulated outside the Legal Service. The Commission representatives specified that the document was drafted by the team in charge of following the advisory opinion proceedings at issue. The document was only shared with a limited number of individuals referred to at the end of the document, who are all staff members of the Legal Service. It is accessible in ARES only to its addressees. The Commission representatives clarified that the document was neither addressed to nor was it endorsed by the Director-General of the Legal Service. In this context, the Commission representatives also confirmed that the document was not shared with any other Directorates-General or Commissioners or cabinets. They further clarified that the document was not produced at the request of any Directorate-General or cabinet.  

The Ombudsman inquiry team asked whether the Commission could provide additional context to illustrate why disclosure of the document would be harmful to its interest in seeking and receiving frank, objective and comprehensive legal advice.

The Commission representatives said that the document constitutes legal advice in its entirety. Also those parts of the note that summarise the ICJ advisory opinion constitute legal advice, as the summary emphasises certain parts of the opinion and not others, and is of a subjective nature, using inter alia emphasis to stress certain points.

While an individual assessment of the document was conducted, the ‘centre of gravity’ of the confirmatory decision is the general presumption of non-disclosure that concerns opinions of the Legal Service, as set out in the Commission’s detailed rules on the application of Regulation 1049/2001[2]. In view of this, the Commission representatives considered that the Commission does not need to provide more explanations as to the sensitivity of the legal advice, as the presumption applies to legal advice regardless of its sensitivity. The Commission also recalled that its detailed rules on the application of Regulation 1049/2001 are binding, and enjoy a presumption of legality.

As regards the detailed rules on the application of Regulation 1049/2001, the Commission representatives further said that the Commission made use of its power under the Treaties to adopt its own rules of procedure that include as an annex the detailed rules in question. Article 15(3) of the Treaty on the Functioning of the European Union and Regulation 1049/2001 itself recognise the power of the Commission to adopt specific provisions regarding access to its documents. The Commission is now applying these rules, as the law as it stands. In this context, the Commission representatives said that the general presumption reflects, in their view, a development in the case-law, which is increasingly protective of the lawyer-client privilege. The Commission representatives pointed to the findings of the Court in paragraphs 25-28 of the judgment in Case C‑694/20. That case concerns the field of taxation, but the paragraphs in question are formulated in general terms (and then applied to the specific case of taxation in paragraphs 29 et seq.). In the view of the Commission, those findings apply also to the opinions the Legal Service of the Commission provides to the Commission, as its legal representative before the Union courts.

The Commission representatives added that the confirmatory decision also includes an individual assessment, as a subsidiary argument. In this regard, they noted that the topic covered by the document is discussed in particular by the EU Member States in the Council Working Party on Public International Law, where the issue of the interpretation of the ICJ advisory opinion arose. Neither the Council, nor the Commission as collegiate organ, have formed a view on this, and until they have, the content of the document remains sensitive. The situation is in that regard comparable to the situation of preliminary legal advice given by the Commission Legal Service concerning the EU-Turkey statement, for which the General Court accepted that it is protected by the legal advice exception (see case T-851/16[3], paragraphs 88-95). In the present case, the legal advice has not even been endorsed by the Director-General of the Legal Service, and – contrary to the advice at issue in that case – also has not been shared with the other Commission services, the cabinets or the College.

The Commission representatives further mentioned that, at the time of the confirmatory decision (March 2025), there were already discussions in academic circles that the ICJ advisory opinion could trigger actions for failure to act by the EU institutions. The Commission did not rely on the need to protect judicial proceedings to refuse access to the document at confirmatory stage, because the legal advice exception was sufficient. However, since the litigation risk was plausible when the confirmatory decision was adopted, this element further underlined the sensitivity of the legal advice. An action for failure to act has now been announced in the press,[4] showing that this risk of litigation was indeed plausible and non-hypothetical and constituted a relevant factor to be taken into account. The Commission representatives provided further explanations as to the sensitivity of the different parts of the document (recorded in the confidential annex to this meeting report).

The Ombudsman inquiry team asked whether the Commission could explain what considerations it took into account when assessing the existence of an overriding public interest in disclosure. The Commission representatives argued that the complainant had failed to show how concretely the public interest invoked could be served by the disclosure of a purely internal note.

Conclusion of the meeting

The Ombudsman inquiry team thanked the Commission’s representatives for their time and for the explanations provided, and the meeting ended.

 

Brussels, 28 August 2025

Tanja Ehnert                                                                                                                                    Alice Bernard

Inquiries Coordinator                                                                                                                       Inquiries Officer

 

[1] Article 4.8 of the European Ombudsman’s Implementing Provisions.

[2] Article 4(2)(c) of the detailed rules for the application of Regulation 1049/2001.

[3] Available at: https://curia.europa.eu/juris/document/document.jsf?text=&docid=199184&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=7879905.

[4] https://euobserver.com/eu-and-the-world/ar48acfd1a?gad_source=1&gad_campaignid=18307476475&gclid=EAIaIQobChMIt76ByOe-jgMVRaCDBx2gWzzgEAAYASAAEgKOsfD_BwE. The action has in the meantime, after the meeting took place, also been notified to the Commission, case T-482/25.