Background to the complaint

1. With a view to enhancing the enforcement of EU law and policies in certain areas, the EU’s ‘Whistleblower Protection Directive’[1] lays down common minimum standards for a high level of protection of persons reporting breaches of EU law[2]. The Directive requires, among others, that Member States adopt the necessary measures to ensure that reporting persons are protected against retaliation, including judicial proceedings against them due to the public disclosures they made[3].

2. In January 2022, the European Commission initiated a formal infringement procedure[4]  against Belgium, issuing a letter of formal notice, for failing to transpose and communicate the transposition measures of the Whistleblower Protection Directive within the deadline. In September 2022, the Commission sent a reasoned opinion to Belgium, as it had not yet fully transposed the Directive.[5] This infringement procedure is ongoing.

3. In September 2025, the complainant requested public access to the letter of formal notice and the reasoned opinion issued by the Commission.

4. In its reply of October 2025, the Commission denied access to both documents in their entirety. The Commission invoked an exception under the EU legislation on public access to documents (Regulation 1049/2001[6]), arguing that disclosing the documents would undermine the purpose of its ongoing investigation[7] regarding a possible infringement of EU law by Belgium. It considered that disclosure, even partial, would jeopardise the climate of mutual trust between the Commission and the concerned Member State. The Commission concluded that there was no overriding public interest in disclosing the documents, as the public interest would be better served by protecting the infringement procedure and the related exchanges with a view to resolving the case without having to turn to the Court of Justice of the EU (CJEU).

5. The complainant asked the Commission to review its position (by making a ‘confirmatory application’) in relation to the reasoned opinion. They argued that the document's disclosure was necessary, because, in their view, the Belgian authorities are misleading the public and (potential) whistleblowers by claiming that Belgium has fully transposed the Directive. Furthermore, the complainant contended that they need the document to exercise their defence rights in proceedings they are facing following the submission of several whistleblowing reports. As regards the Commission’s investigation or decision-making, the complainant considered that this investigation is no longer ongoing as the Commission has already concluded that Belgium failed to transpose the Directive and, therefore, there would be no risk of undermining trust between the parties.

6. The complainant also considered that there is an overriding public interest in disclosing the Commission’s reasoned opinion, as the document concerns a systemic issue affecting all whistleblowers in Belgium and its disclosure would enhance democratic accountability. If full access was not possible, the complainant specifically requested access to the Commission’s general assessment of whether Belgium had correctly transposed the Directive, including its findings on the transposition of specific Articles that they considered relevant to the judicial proceedings against them.

7. In December 2025, the Commission confirmed its refusal to disclose the document at issue, relying on the general presumption of non-disclosure that applies to infringement procedures.

8. Dissatisfied with this outcome, the complainant turned to the European Ombudsman in February 2026.

The inquiry

9. The Ombudsman opened an inquiry into the Commission’s decision to deny public access to the document at issue.

10. During the inquiry, the Ombudsman inquiry team inspected the document at issue and asked the Commission to provide additional views on the matter, in particular on the state-of-play of the relevant infringement procedure.

11. In its additional views, the Commission stated that the assessment of the completeness of Belgium’s transposition of the Whistleblower Protection Directive is ongoing.

Arguments presented

12. In its confirmatory decision, the Commission pointed out that the requested document forms integral part of the file for infringement procedure INFR(2022)0011. The Commission argued that its activities in the context of an infringement procedure constitute an investigation[8] within the meaning of Regulation 1049/2001. Furthermore, it stated that the CJEU has recognised the existence of a presumption of non-disclosure for documents pertaining to infringement proceedings[9], irrespective of whether the documents at issue were drawn up during the informal or formal stage of an infringement procedure[10].

13. According to the Commission, disclosure of the document at issue would undermine the purpose of the ongoing investigation and the climate of mutual trust between the Commission and Belgium, as well as jeopardise the possibility of an amicable settlement of the dispute (without having to refer it to the CJEU).[11] The Commission further explained that Belgium had notified several provisions to transpose the Directive in 2024, which it is currently assessing. Therefore, the Commission considered that there exists a real and non-hypothetical risk that disclosure of the document would affect the ongoing investigation. In addition, the Commission argued that disclosure would expose the Commission to external pressure.

14. The Commission considered that no overriding public interest in disclosure had been demonstrated, given that the complainant appeared to be primarily pursuing their private interests, wishing to use the requested document in court proceedings against them. It further noted that the public interest in ensuring compliance with EU law is best served by protecting the effectiveness of the Commission’s investigation[12], and that Belgian courts can always request access to the document at issue in the context of national proceedings under the principle of loyal cooperation. Lastly, the Commission stated that there is no obligation to give partial access when requested documents are covered by a general presumption of non-disclosure[13].

15. In their complaint to the Ombudsman, the complainant emphasised the importance of the requested document for the exercise of their defence rights, as they would be facing a Strategic Lawsuit Against Public Participation (SLAPP), which, they argued, constitutes a matter of public interest as successful SLAPPs can deter future whistleblowers from reporting. In reply to the Commission’s argument that the Belgian courts can always request the document, the complainant pointed out that they believe that these courts systemically refuse to apply EU law in this context, ultimately undermining their right to effective judicial protection.

16. More generally, the complainant noted that transparency in infringement proceedings is a public interest and that confidentiality during such proceedings should be balanced against the length of the proceedings, possible harm to fundamental rights, and the public interest in knowing that the law is respected. The complainant considered that the Commission’s denial of even partial access was unjustified and that it protects Belgium from being held accountable for not implementing EU law. In this regard, they argued that the Commission’s legal interpretation, general description of deficiencies, the timeline of Belgian notifications and the Commission’s assessment could likely be disclosed without harm.

The Ombudsman’s assessment

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.[14] 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.

18. The case-law has clarified that one of these categories concerns documents related to ongoing infringement procedures.[15] As long as there is a risk of affecting the nature of the infringement procedure, altering its progress or undermining its objectives, the application of the presumption is justified.[16]  

19. The inspection of the document at issue confirmed that it forms part of the administrative file of the relevant infringement procedure. According to the Commission, this procedure is ongoing.

20. Therefore, it seemed reasonable for the Commission to consider that the document’s disclosure would alter the nature of those proceedings and to rely on the general presumption of non-disclosure.

21. The Ombudsman notes that a general presumption does not exclude the possibility of demonstrating that a given document, disclosure of which has been requested, is not covered by that presumption, or that there is an overriding public interest justifying disclosure of the document concerned.[17] To demonstrate the existence of an overriding public interest in disclosure, EU case-law[18] requires that an applicant for public access puts forward specific circumstances to justify disclosure and that purely general considerations do not suffice. More specifically, an applicant is required to show that “the principle of transparency was in some sense especially pressing and capable, therefore, of prevailing over the reasons justifying the refusal to disclose”[19].

22. In this case, the complainant argued that there is such an overriding public interest justifying disclosure of the requested document. In their view, the document is likely to contain information relating to specific failings in Belgium’s implementation of the Directive. Accordingly, its disclosure would help to demonstrate that the non-transposition of the Directive is a systemic failure that affects all whistleblowers in Belgium, bringing awareness of these issues for both the public and (potential) whistleblowers.

23. For the Ombudsman, adequate protection of whistleblowers is essential to safeguard the public interest, to protect freedom of expression and to promote transparency.

24. In this case, the inspection of the document at issue revealed that it solely contains general information regarding the state-of-play in 2022 of Belgium’s (planned) notification of transposition measures to the Commission. As the Commission clarified in its confirmatory decision and in its additional views to the Ombudsman, Belgium notified several provisions to transpose the Whistleblower Protection Directive in 2024, that is, after the Commission sent its reasoned opinion. The Commission said that it is still assessing the completeness of these provisions. Therefore, it is not clear to the Ombudsman how the information contained in the requested document would at this stage satisfy the public interest invoked by the complainant and, for that matter, outweigh the public interest in allowing the Commission to protect the purpose of its ongoing investigation to clarify whether EU law has been complied with by the Member State concerned[20].

25. Overall, the Ombudsman considers that in this case the Commission did not commit an act of maladministration when it relied on the general presumption of non-disclosure to refuse public access to the requested document.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion[21]:

The Commission did not commit an act of maladministration in this case when relying on the general presumption of non-disclosure to refuse public access to the requested document.

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

Lampros Papadias
Secretary-General

Strasbourg, 07/04/2026

 

[1] Directive 2019/1937 on the protection of persons who report breaches of Union law: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02019L1937-20241230.  

[2] Article 1 of Directive 2019/1937.

[3] Article 21 of Directive 2019/1937.

[4] INFR(2022)0011.

[5] See: https://ec.europa.eu/commission/presscorner/detail/en/inf_22_5402.

[6] Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents: https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32001R1049.

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

[8] Judgment of the Court of Justice 7 September 2017, France v Schlyter, C-331/15 P, paragraph 46: https://curia.europa.eu/juris/document/document.jsf?text=&docid=194104&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=871574.

[9] Judgment of the General Court of 1 February 2023, ClientEarth v Commission, T‑354/21, paragraph 43 and the case law referred therein: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62021TJ0354.

[10] Ibid, paragraph 65.

^[11] Judgment of the General Court of 25 September 2014, Spirlea v Commission, T-306/12, paragraph 57: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62012TJ0306, confirmed by the Judgment of the Court of Justice of 11 May 2017, Sweden and Spirlea v Commission, C-562/14 P: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62014CJ0562; Judgment of the Court of Justice of 14 November 2013, LPN and Finland v Commission, C-514/11 P and C-605/11 P, paragraph 65: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62011CJ0514.  

[12] Judgment of the General Court of 9 October 2018, Anikó Pint v Commission, T-634/17, paragraph 48: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:62017TJ0634.

[13] Judgment of the Court of Justice of 28 June 2012, Commission v Éditions Odile Jacob, C-404/10 P, paragraph 133: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62010CJ0404.  

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

[15] LPN and Finland v Commission, paragraphs 61-68.

[16] Sweden and Spirlea v Commission, paragraph 45.

[17] Sweden and Spirlea v Commission, paragraph 46.

[18] LPN and Finland v Commission, paragraphs 93-94; Sweden and Spirlea v Commission, paragraph 56.

[19] LPN and Finland v Commission, paragraph 93.

[20] Spirlea v Commission, paragraph 98.

[21] This complaint has been dealt with under delegated case handling, in accordance with the Decision of the European Ombudsman adopting Implementing Provisions.