The case concerned the European Commission’s refusal to grant public access to documents related to the applications of mineral extraction and processing projects to be recognised as ‘Strategic Projects’ under the Critical Raw Materials Act. Specifically, the complainant sought access to four Commission decisions granting – or not – the status of Strategic Project and to parts of the applications of 12 projects that are located within the EU and whose applications have been successful. The Commission considered that the documents’ disclosure would undermine the commercial interests of the companies concerned, relying, with respect to the majority of the documents at issue, on a general presumption of non-disclosure. Amongst other elements, the complainant contended that there is an overriding public interest in disclosure, given that the documents are likely to contain important environmental information.

The Ombudsman considered that, due to their very nature, it was unreasonable for the Commission to apply a general presumption of non-disclosure to documents related to the designation of critical raw materials projects as Strategic Projects under the CRMA. In addition, based on the inspection of the documents by her inquiry team, the Ombudsman found that they do not contain sensitive information throughout, including because large parts of them had already been lawfully made public at the time when the Commission issued its final position on the complainant’s access request. The Ombudsman also took the view that the documents contain extensive environmental information, including ‘information related to emissions into the environment’ for which an overriding public interest in disclosure is deemed to exist. The Ombudsman therefore concluded that the Commission’s refusal to give public access constituted maladministration. She recommended that the Commission re-consider its position with a view to granting wide access to the documents at issue.

The three cases concerned how the European Commission applied its Better Regulation rules and other procedural requirements when preparing legislative proposals concerning corporate sustainability due diligence (983/2025/MIK), countering migrant smuggling (2031/2024/VB) and the Common Agricultural Policy (1379/2024/MIK). The Commission considered these proposals to be urgent and, therefore, omitted steps foreseen in its rules, such as impact assessments and public consultations. The complainants, which are civil society organisations, considered these omissions to be in breach of the Commission’s Better Regulation rules. In two cases, the complainants also argued that the Commission failed to assess the legislative proposals’ consistency with the EU’s climate goals, as required by the European Climate Law. In one case, the complainant was further concerned that the Commission breached its Rules of Procedure on inter-service consultations.

Based on her inquiries, the Ombudsman found procedural shortcomings in how the Commission prepared the legislative proposals in question, which, taken together, amounted to maladministration. To address these shortcomings, the Ombudsman recommended that the Commission ensure a predictable, consistent and non-arbitrary application of its Better Regulation rules, by defining ‘urgent’ situations that justify a derogation from their requirements, as well as by recording and explaining the reasons for any derogations granted. Furthermore, where derogations are granted, the Commission should establish a procedure to ensure that the urgent preparation of legislative proposals still complies with the principles of a transparent, evidence-based and inclusive law-making process. To assist the Commission in this task, the Ombudsman also made four suggestions for improvement, which included: clarifying its stakeholder consultation rules for urgent proposals; ensuring that the analytical documents replacing impact assessments and outlining the evidence supporting its proposals are published in a timely manner to enable a public debate before the legislation is adopted; issuing guidance on implementing climate consistency assessments; providing and recording justifications when shortening inter-service consultation periods below established thresholds.

In its reply to the Ombudsman, the Commission agreed to reflect on defining ‘urgent’ situations during the upcoming revision of the Better Regulation rules, as well as to record and publish the reasons for applying any derogations from their requirements. The Commission also committed to ensure targeted consultations on its ‘urgent’ proposals, to publish the analytical documents with evidence supporting its proposals within three months of adoption, to include climate consistency assessments in both analytical documents and explanatory memoranda for future proposals and to provide justifications for shortened inter-service consultations.

The complainants, in their comments on the Commission’s reply, considered that the Commission’s commitments are neither clear nor concrete enough to guarantee a transparent, inclusive and evidence-based law-making process.

The Ombudsman welcomed the overall constructive reply of the Commission to her recommendations and suggestions for improvement. That said, the Commission’s response does not yet provide sufficient clarity on the concrete steps it intends to take to implement the Ombudsman’s recommendations and suggestions for improvement.

The Ombudsman will therefore monitor this matter based on future complaints and once the Commission has finalised the revision of the Better Regulation rules. At this stage, no further inquiries are justified, and the Ombudsman closed the three cases.

The case concerned the European Commission’s refusal to grant public access to an application for a mineral extraction and processing project to be recognised as a ‘Strategic Project’ under the Critical Raw Materials Act and the Commission’s related assessment. The Commission considered that disclosure would undermine the commercial interests of the company concerned, including because the project had not been designated as a Strategic Project. Amongst other elements, the complainant contended that there is an overriding public interest in disclosure, arguing that the documents at issue are likely to contain important environmental information.

Based on the inspection of the documents at issue by her inquiry team, the Ombudsman found that it had been reasonable for the Commission to consider that disclosure would undermine the commercial interests of the company concerned. In addition, while the documents contain some information about the anticipated environmental and social impacts of the project, this was not sufficient to establish an overriding public interest in disclosure.

The Ombudsman therefore closed the inquiry finding no maladministration in the Commission’s refusal of access.