Background to the complaint

1. On 3 October 2024, the European Commission announced that it opened an infringement procedure by sending a letter of formal notice[1] to Finland for its alleged failure to comply with Directive 2000/60/EC (‘Water Framework Directive’).[2]

2. On 1 November 2024, the complainant submitted an infringement complaint against Finland to the Commission on the same matter.

3. On 6 December 2024, the complainant requested public access[3] to the Commission’s letter of formal notice of 3 October 2024.

4. On 21 January 2025, the Commission sent its initial reply. It refused access to the letter of formal notice in its entirety, arguing that disclosure would undermine the protection of investigations.[4]

5. The next day, the complainant asked the Commission to review its decision to refuse access to the requested document (by making a ‘confirmatory application’).

6. On 25 April 2025, the Commission replied to the complainant’s confirmatory application. It stated that it had to maintain its refusal to grant public access based on the need to protect the purpose of investigations and an associated general presumption of confidentiality.

7. Dissatisfied with this reply, the complainant turned to the Ombudsman on 19 June 2025.

The inquiry

8. The Ombudsman opened an inquiry into the Commission’s refusal to grant public access to the letter of formal notice.

9. In the course of the inquiry, the Ombudsman received the Commission’s additional views on the complaint and the inquiry team inspected the document at issue.  

Arguments presented

By the complainant

10. In his confirmatory application, the complainant noted the principle that Commission documents are public and that exceptions to this principle must be construed narrowly.[5]

11. The complainant argued that Article 6 of Regulation 1367/2006 (‘Aarhus Regulation’)[6] and EU case-law[7] require disclosure of the requested document. He considered that access could not be denied when the information at issue concerns emissions into the environment, as, under Article 6 of the Aarhus Regulation, an overriding public interest in disclosure of such information is deemed to exist. As his public access request and his infringement complaint deal with emissions into groundwater and surface water, the overriding public interest set out in Article 6 of the Aarhus Regulation applies to his public access request.

12. The complainant furthermore considered that ensuring the enforcement of the Water Framework Directive, which is meant to prevent emissions, constitutes an overriding public interest in disclosure as such.

13. The complainant argued that blindly following the case-law, to which the Commission referred in its initial reply,[8] would prevent the efficient enforcement of the Water Framework Directive. The complainant also took the view that this case-law was not relevant for his request: firstly, it does not deal with emissions into the environment, secondly, it does not deal with an existing legal process on an identical matter and, lastly, disclosure in his case would not hinder but aid the legal process.

14. In this context, the complainant noted that he, like the Commission, has an ongoing legal process[9] against Finland. He contended that his complaint and the infringement process deal with the same issue, namely Finland’s refusal to enforce the Water Framework Directive. The complainant argued that the “fundamental right of equality of arms” requires the disclosure of all documents related to the Commission’s infringement procedure. He noted that Finland has access to this Commission document while he has not. Non-disclosure would thus prevent justice and unnecessarily hinder the enforcement of the Water Framework Directive. The complainant also argued that disclosure was required under the EU Charter of Fundamental Rights[10] and the European Convention on Human Rights,[11] as limited access to confidential documents is not acceptable in a legal process.[12]

15. The complainant requested that the Commission also disclose the material it prepared in relation to the letter of formal notice.

16. In his complaint to the Ombudsman, the complainant argued that the Commission did not identify all relevant documents and failed to explain how access to the identified document could specifically and actually undermine the interest protected by the exception.[13]

17. He further argued that the letter of formal notice is not an investigative document. In the complainant’s view, once the Commission has issued a letter of formal notice, it has concluded and finished its factual investigation. Furthermore, the complainant contended that, in accordance with EU case-law,[14] the concept of investigations must be interpreted restrictively, as a presumption of confidentiality is an exception to the rule that the institution must make an individual examination of every document.

By the Commission

18. In its confirmatory decision, the Commission noted that the letter of formal notice at issue in the complainant’s public access request relates to a Commission investigation of a possible infringement of EU law by a Member State, namely the possible incorrect transposition of the Water Framework Directive by Finland. The Commission added that the investigation is a formal infringement procedure that is ongoing and that the document is part of the administrative file associated to this procedure.

19. The Commission stated that it had to refuse access based on the need to protect the purpose of investigations and an associated general presumption of confidentiality that protects investigations relating to infringement procedures.[15] This presumption derives from Article 4(2), third indent, of Regulation 1049/2001 and may be applied to documents related to an investigation by the Commission of a possible infringement of EU law by a Member State. It applies regardless of the number of documents requested in a given application for access, as long as those documents are placed in the administrative file of a relevant procedure, which remains ongoing. The Commission noted that the requested document clearly fulfils these requirements.

20. The Commission argued that, in accordance with EU case-law, it can be presumed that granting public access to the requested document would risk altering the nature of the relevant infringement procedure and changing the way it proceeds, which would undermine the protection of the purpose of investigations. The effectiveness of the Commission’s investigations of possible infringements of EU law by Member States depends on the climate of mutual trust between the Commission and the Member State concerned, as well as the Commission’s ability to define freely a position at any stage of the process. If the Commission were to disclose a document relating to such an investigation, it would certainly undermine this climate of mutual trust, as well as expose the Commission to external pressure, which would also harm its ability to define freely a stance on the matter.

21. The Commission acknowledged that this presumption can be rebutted by demonstrating that a document is not covered by the presumption or that an overriding public interest in disclosure exists. The Commission noted, however, that Article 6 of the Aarhus Regulation explicitly exempts information that relates to investigations concerning possible infringements of EU law from the presumption that an overriding public interest in disclosure exists. In accordance with EU case-law, access to a document containing such information may be refused on the basis of the associated presumption of confidentiality.^[16]

22. Concerning the complainant’s other arguments, the Commission noted that the General Court has ruled that an overriding public interest cannot be inferred from an applicant’s willingness to verify a Member State’s compliance with EU law, as the most effective way of protecting the public interest at issue is to enable the Commission to carry out such a verification.[17] Furthermore, as regards the complainant’s reference to his ongoing legal process, which would, in the complainant’s view, warrant disclosure of the document under the principle of ‘equality of arms’, the Commission noted that the General Court has ruled that an applicant’s wish to receive access for the purpose of court proceedings constitutes a private rather than a public interest.[18] The Commission added that, in the context of the complainant’s infringement complaint, he is only concerned inasmuch as the administrative procedure of processing his complaint by the Commission is involved. The Commission’s ensuing investigation does not give rise to any legal proceedings between the complainant and Finland.

23. The Commission concluded that it was not required to consider the possibility of partial access to the document, given that it is covered by the presumption of confidentiality in its entirety.

24. In its additional views to the Ombudsman, the Commission stated that the relevant infringement procedure is currently ongoing and that the Commission services are assessing the reply received from the Finnish authorities.

The Ombudsman's assessment

25. In his complaint to the Ombudsman, the complainant argued that the Commission did not identify all documents falling within the scope of his request, and that it did not explain how access to the document it identified could specifically and actually undermine the interest protected by the exception invoked, that is, the purpose of investigations.

26. The Ombudsman notes that, in his initial application for public access, the complainant asked the Commission to provide him with the letter of formal notice. Accordingly, the Commission identified the letter of formal notice as falling within the scope of the complainant’s request. In his confirmatory application, the complainant additionally asked for access to all documents related to the letter of formal notice. As the scope of an access request cannot be extended at confirmatory stage, the Commission was correct in considering that the additional documents fall outside the scope of the access request.[19] That said, the Ombudsman regrets that the Commission did not inform the complainant of this when it received the confirmatory application, nor in its confirmatory decision.

27. Concerning the complainant’s argument that the Commission failed to demonstrate how disclosure of the letter of formal notice could specifically and actually undermine the purpose of investigations, the Ombudsman notes that EU courts have recognised that EU institutions may refuse public access to documents based on a ‘general presumption’ of confidentiality for certain categories of documents.[20] 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 concerned may assume that, because the documents in question fall within a certain category, disclosure of any of them would undermine the protected interests.

28. The case-law has clarified that one of these categories concerns documents related to ongoing infringement procedures.[21]

29. Contrary to what the complainant argued, the Commission’s investigation into an infringement of EU law is not finalised once a letter of formal notice is sent to the Member State concerned. An infringement procedure formally starts with a letter of formal notice to the Member State concerned and is part of the so-called ‘pre-litigation’ phase.

30. The inspection of the letter of formal notice by the Ombudsman inquiry team confirmed that the document in question forms part of the administrative file of the Commission’s infringement proceedings. In its additional views to the Ombudsman, the Commission further confirmed that its services are currently assessing the reply to the letter of formal notice received from the Finnish authorities, and that the infringement procedure is thus still ongoing.

31. In view of this, the Ombudsman considers that it was reasonable for the Commission in this case to rely on the general presumption of confidentiality for documents that form part of the administrative file of an ongoing investigation into a Member State’s alleged failure to fulfil its obligations under EU law.[22]

32. This said, the Ombudsman recalls that relying on a general presumption is an option, not an obligation.^[23] General presumptions as an exception of the fundamental principle of providing public access must be applied strictly.^[24] The Commission should therefore not mechanically apply a general presumption without exercising judgment and without taking into account the circumstances of the case.

33. The general presumption of confidentiality can be overturned by showing that there is an overriding public interest in disclosure.[25]

34. The complainant argued that, according to Article 6(1) of the Aarhus Regulation and EU case-law, an overriding public interest in the disclosure of the requested document is deemed to exist. This is because the document contains ‘information related to emissions into the environment’.

35. The Ombudsman notes that the complainant is correct in saying that Article 6(1) of the Aarhus Regulation establishes an automatic overriding public interest for disclosure of information related to emissions into the environment.

36. However, Article 6(1) of the Aarhus Regulation explicitly excludes from its scope “investigations, in particular those concerning possible infringements of Community law”. This has been confirmed by the Court in LPN and Finland v Commission, where it found that the manner in which the two sentences of Article 6(1) of the Aarhus Regulation are drafted indicate the “express intention of the legislature to remove infringement procedures from the scope of Article 6(1) Regulation No 1367/2006 as a whole”.[26] In view of this, an overriding public interest in the disclosure of the letter of formal notice cannot be deemed to exist.

37. The complainant further argued that the application of the exception is overridden by the public interest in the efficient enforcement of the Water Framework Directive and the fact he has an “ongoing legal process on the same matter in the EU Commission”. In this context, the complainant noted that the EU Charter of Fundamental Rights and the European Convention on Human Rights, establish the fundamental principle of “equality of arms”.

38. In accordance with EU case-law, an overriding public interest in disclosure cannot be inferred from the complainant’s interest in assessing whether a Member State complied with EU law,[27] as the Commission is best placed to make such an assessment.[28] The Ombudsman further notes that as the Commission pointed out, the complainant’s interest in using the document in question in domestic court proceedings is not a public interest but a private one.[29]

39. For the above reasons, the Ombudsman considers that the Commission was justified in refusing public access to the letter of formal notice in question.

Conclusion

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

There was no maladministration by the European Commission.

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

Teresa Anjinho
European Ombudsman

Strasbourg, 05/08/2025

 

[1] See case INFR(2024)2196; https://ec.europa.eu/commission/presscorner/detail/en/inf_24_4561.

[2] Directive 2000/60/EC of the European Parliament and of the Council establishing a framework for Community action in the field of water policy: https://eur-lex.europa.eu/eli/dir/2000/60/oj/eng.

[3] Under Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents (Regulation 1049/2001); https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32001R1049.

[4] Article 4(2) third indent of Regulation 1049/2001.

[5] The complainant referred to the Judgment of the Court of 14 November 2013 in joined cases C-514/11 P and C-605/11 P, LPN and Finland v Commission; para 6: https://curia.europa.eu/juris/liste.jsf?num=C-514/11&language=en.

[6] Regulation 1367/2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (Aarhus Regulation); https://eur-lex.europa.eu/eli/reg/2006/1367/oj/eng

[7] Judgment of the Court of 14 November 2013 in joined cases C-514/11 P and C-605/11 P, LPN and Finland v Commission; para 6: https://curia.europa.eu/juris/liste.jsf?num=C-514/11&language=en.

[8] Judgment of the Court of 14 November 2013 in joined cases C-514/11 P and C-605/11 P, LPN and Finland v Commission: https://curia.europa.eu/juris/liste.jsf?num=C-514/11&language=en and Judgment of the Court of 5 September 2024 in case C-249/23 P, ClientEarth v Commission: https://curia.europa.eu/juris/document/document.jsf?text=&docid=289814&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=7183520.

[9] The complainant referred to his infringement complaint that he submitted to the Commission concerning the same issue.

[10] Charter of Fundamental Rights of the European Union: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12012P/TXT.

[11] European Convention on Human Rights: https://www.echr.coe.int/documents/d/echr/convention_ENG.

[12] Judgment of the European Court of Human Rights of 24 April 2007, 38184/03, Matyjek v Poland; https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22002-2759%22]}; and Judgement of the European Court of Human Rights of 17 July 2007, 68761/01, Bobek v Poland; https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-81677%22]}.

[13] Judgment of the Court of 16 July 205 in Case C-612/13 P, ClientEarth v Commission, para 68; https://curia.europa.eu/juris/liste.jsf?language=en&num=C-612/13%20P; and Judgment of the Court of 27 February 2014 in Case C-365/12 P, Commission v EnBW, para 64; https://curia.europa.eu/juris/document/document.jsf?text=&docid=148392&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=2985761.

[14] The complainant referred to Judgment of the Court of 14 November 2013 in joined cases C-514/11 P and C-605/11 P, LPN and Finland v Commission; para 44: https://curia.europa.eu/juris/liste.jsf?num=C-514/11&language=en, but also to the Judgment of Court of 21 July 2011 in case C-506/08 P, Sweden v MyTravel and Commission: https://curia.europa.eu/juris/document/document.jsf?text=&docid=107935&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3009716; and the Judgment of the Court of 3 July 2014 in case C-350/12 P, Council v in ‘t Veld: https://curia.europa.eu/juris/document/document.jsf?text=&docid=154535&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=8136544.

[15] Judgment of the General Court of 1 February 2023 in Case T-354/21, ClientEarth v Commission, para 43; https://curia.europa.eu/juris/document/document.jsf?text=&docid=270046&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3164223

[16] Judgment of the Court of 14 November 2013 in joined cases C-514/11 P and C-605/11 P, LPN and Finland v Commission; para 85: https://curia.europa.eu/juris/liste.jsf?num=C-514/11&language=en.

[17] Judgment of the General Court of 9 October 2018 in case T-634/17, Pint v Commission, para 53; https://curia.europa.eu/juris/document/document.jsf?text=&docid=270046&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3164223.

[18] Judgment of the General Court of 13 September 2013 in case T-380/08, Netherlands v Commission, para 80-83; https://curia.europa.eu/juris/document/document.jsf?text=&docid=141081&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3186131.

[19] See Judgment of the General Court of 10 February 2021, T-488/18, XC v European Commission, paras 167-169: https://curia.europa.eu/juris/document/document.jsf?text=&docid=237620&pageIndex=0&doclang=FR&mode=lst&dir=&occ=first&part=1&cid=4120599.

[20] Judgment of the General Court of 13 September 2013 in case T-380/08, Netherlands v Commission, para 35: https://curia.europa.eu/juris/liste.jsf?num=T-380/08&language=EN

[21] Judgment of the Court of 14 November 2013 in joined cases C-514/11 P and C-605/11 P, LPN and Finland v Commission: https://curia.europa.eu/juris/liste.jsf?num=C-514/11&language=en

[22] Judgment of the General Court of 13 September 2013 in case T-111/11, ClientEarth v Commission, para 75; https://curia.europa.eu/juris/document/document.jsf?text=&docid=141083&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=7290797

[23] Judgment of the Court of Justice of 22 January 2020, Therapeutics International v EMA, C-175/18 P, paragraph 61,

available at: https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX:62018CJ0175.

[24] Judgement of the General Court of 29 September 2021 in case T-569/19, AlzChem v Commission; para 42: https://curia.europa.eu/juris/liste.jsf?language=en&td=ALL&num=T-569/19.

[25] Ibid, para 66.

[26] Ibid, para 84.

[27] Judgment of the General Court of 11 July 2018 in case T-643/13, Rogesa v Commission, para 107; https://curia.europa.eu/juris/liste.jsf?language=en&num=T-643/13.

[28] Judgment of the General Court of 9 October 2018 in case T-634/17, Pint v Commission, para 53: https://curia.europa.eu/juris/document/document.jsf?text=&docid=270046&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3164223.

[29] Ibid, para 59.