Made in accordance with Article 2(10) of the Statute of the European Ombudsman[1]

Background to the complaint

1. In June 2024, the complainant submitted to the European Anti-Fraud Office (OLAF) four public access requests to documents[2] covering:

• OLAF’s file regarding an internal investigation concerning “Family ties and conflict of interest” mentioned in OLAF’s 2022 annual report, including OLAF’s final report closing this investigation[3];
• OLAF’s final reports and related recommendations in disciplinary cases involving staff and members of the European Commission [4], and of other EU institutions or agencies[5], mentioned in OLAF’s annual reports between 2015 and 2023, in which follow-up actions have been taken;
• OLAF’s final reports and related recommendations issued to Irish judicial authorities mentioned in OLAF’s annual reports for 2014, 2015 and 2019[6].

2. In its replies, OLAF identified documents related to 44 investigations[7]. It refused access to all documents in their entirety, invoking a general presumption of non-disclosure to protect the purpose of its investigations in accordance with Article 4(2), third indent, of the EU legislation on public access to documents (Regulation 1049/2001).

3. The complainant asked OLAF to review its decisions by making ‘confirmatory applications’.

4. OLAF issued four confirmatory decisions between November 2024 and January 2025, confirming the refused access on the basis of a general presumption of non-disclosure based on the need to protect the purpose of its investigations.

5. Dissatisfied with OLAF’s refusal to grant any access to the documents requested, the complainant turned to the Ombudsman.

The inquiry

6. The Ombudsman opened four separate inquiries into OLAF’s refusal to give public access to the documents requested.

7. In the course of these inquiries, the Ombudsman inquiry team inspected the 44 final reports and related recommendations at issue. The Ombudsman inquiry team also carried out an on-site inspection of the remaining documents in the investigation file in case 2327/2024/ACB. 

8. The Ombudsman inquiry team inspected the exchanges between OLAF and the relevant authorities on the status of the follow-up activities in relation to seven investigations that OLAF stated were still ongoing at the time of the confirmatory decisions.

9. In the context of three inquiries[8], OLAF provided additional comments to the Ombudsman.

10. This solution proposal covers OLAF’s refusal to grant public access to the 44 final reports and related recommendations. The Ombudsman will deal separately with OLAF’s refusal to grant public access to the remaining documents in the investigation file in case 2327/2024/ACB.

Arguments presented

11. In the four confirmatory decisions at issue, OLAF considered that the requested documents form part of its investigation files to which a general presumption of non-disclosure applies, arising from Article 4(2), third indent, of Regulation 1049/2001. According to OLAF, this presumption continues to apply after its investigations and the follow-up activities by the competent authorities have been closed.

12. OLAF stated that the Court of Justice has acknowledged that institutions may rely on general presumptions applicable to certain categories of documents when similar considerations are likely to apply to documents of the same nature. In light of the case-law recognising general presumptions of non-disclosure in the context of State aid, anti-trust and infringement proceedings, OLAF considered that a general presumption of non-disclosure could apply, by analogy, to documents in OLAF investigation files. OLAF pointed to the specific rules applicable to its investigations[9], and the sensitive and detailed information that investigation files typically contain.

13. OLAF argued in particular that granting public access to documents in its investigation files would give the general public greater rights than those afforded to the “person concerned” by an OLAF investigation[10], thereby calling into question the balance of the anti-fraud investigative system established by the EU legislature. OLAF added that disclosure of documents in its investigation files would reveal its investigative strategies and methods, thereby undermining its effectiveness in performing its tasks. Furthermore, disclosure could deter individuals from providing information about possible fraud, depriving OLAF of valuable information for initiating investigations. These concerns would be reasonably foreseeable and not purely hypothetical, particularly given the potential for OLAF to investigate similar fraud patterns or related matters.

14. In the most recent confirmatory decision[11], OLAF also referred to the Commission’s Detailed Rules for the application of Regulation 1049/2001,^[12] in support of the general presumption it relied on^[13].

15. Regarding the final reports contained in the investigation file, OLAF further argued that these offer a comprehensive account of the investigation, including the allegations and information on the entire investigative process, such as evidence collection methods, witness interviews, and on-site inspections. Disclosing this level of detail, even after investigations are closed, could severely undermine its ability to fulfil its mandate effectively in the future.

16. OLAF’s recommendations contain information related to investigative findings and suggested actions for the relevant national or EU authorities to follow-up. OLAF specified that its recommendations are not binding and authorities retain full discretion on how to proceed. Because of this, disclosing recommendations outside the appropriate legal framework could lead to their misinterpretation and subject authorities responsible for the follow-up to external pressure. As a result, disclosure could jeopardise the willingness of authorities to cooperate with OLAF, which would, in turn, significantly undermine OLAF’s ability to conduct effective investigations in the future.

17. According to OLAF, even if anonymised, disclosing final reports and recommendations could risk revealing the identities of individuals involved in the investigation, such as witnesses or whistle-blowers as their identities might be deduced from contextual information. In some cases, disclosure could also expose sensitive commercial information that could harm the interests of companies linked to OLAF’s investigations.

18. In addition, OLAF mentioned that, in seven investigations covered by three of the access requests[14], the follow-up activities were still ongoing.

19. Finally, OLAF argued that general considerations, such as a reference to the need to ensure the good administration of EU funds, cannot be sufficient to demonstrate an overriding public interest in disclosure. OLAF also mentioned that it publishes annual reports with comprehensive overviews of its investigations including detailed statistical information, in addition to the information that it disseminates via press releases and replies to queries. These different forms of communication satisfy the public interest in increased transparency in the use of EU funds. 

20. In its additional comments submitted in the context of three inquiries[15], OLAF emphasised that, in the recent judgment in OC v Commission[16], the Court of Justice highlighted significant challenges associated with redacting personal data from OLAF documents. According to OLAF, the judgment demonstrates that even seemingly disconnected details can enable the identification of natural persons, particularly among those familiar with the individuals’ professional contexts. OLAF concluded that, by analogy, the reasoning in this judgment reinforces the principle already established by the EU courts that public disclosure of OLAF documents, even with redactions, could fundamentally undermine the objectives of OLAF’s investigative activities, both now and in the future.

21. In his confirmatory applications and complaints to the Ombudsman, the complainant stated that he was not seeking information that would compromise the anonymity of informants, the confidentiality of investigative methods, or any commercial interests. Such information, in his view, could be redacted while still providing access to the substantive content of the documents. He contested OLAF’s legal reasoning by pointing to case-law,[17] stating that the presumption of non-disclosure invoked cannot be maintained once the follow-up activities have been concluded.

22. The complainant stated that OLAF’s reasons for refusing public access to documents in its investigation files have shifted in a way that undermines the principles of transparency and accountability, which are fundamental to EU governance. For example, in relation to case 2327/2024/ACB, the complainant had requested access to the same final report in the past.[18] At that time, OLAF stated that as long as that the follow-up activities were ongoing, access could not be granted. Its refusal to grant partial access now that the follow-up activities are closed suggests a new approach amounting to a blanket non-disclosure policy in perpetuity, incompatible with the case-law. He also stated that if the rationale for non-disclosure is to maintain the integrity of OLAF’s investigations, it is unclear why some completed reports—dating back nearly a decade—would still be protected[19].

23. Furthermore, the complainant contended that there is an overriding public interest in disclosure, as the public has a legitimate interest in being informed about the misuse of EU funds, particularly when it involves the actions of EU staff members. Disclosure is also needed to enhance the accountability of EU and national authorities in the management of EU funds. He argued that the information OLAF publishes in its annual reports is not sufficient in that regard and that, in a democratic society, transparency, especially regarding potential wrongdoing, is crucial for maintaining public confidence in governmental institutions.

The Ombudsman's assessment

24. The confirmatory decisions at issue reflect a significant and concerning evolution in OLAF’s approach to public access to final reports and recommendations from its investigations.

25. In the past, once the investigation and related follow-up activities had been closed, OLAF carried out individual assessments of final reports to which public access was sought[20], granting partial access to these documents where possible. The refusal to conduct an individual assessment of the final reports at issue in the four public access requests shows a clear and significant step backward in terms of transparency.

26. According to OLAF’s new approach, it is for the applicant to show, from the outset, either that there is an overriding public interest in disclosure or that the requested final report and related recommendations are not covered by the general presumption. This approach creates a significant barrier to public access and scrutiny of OLAF’s final analysis and conclusions in any given investigation.

27. Such an interpretation of Regulation 1049/2001 is difficult to reconcile with the concept of openness enshrined in the EU Treaties and with established case-law, as detailed below.

28. It is true that the General Court has recognised, notably in Homoki[21], the possibility for OLAF to rely on a general presumption of non-disclosure in relation to documents in its investigation files, based on the need to protect the purpose of its investigations[22].

29. However, the General Court has also clarified that this general presumption is time-limited[23] and can only be relied upon while the investigation is still ongoing and during any follow-up activities, provided that a reasonable time for deciding what follow-up action to take has not yet lapsed[24]. In other words, the case-law makes it clear that after the investigation and related follow-up activities have been closed (or a reasonable period for the follow-up has lapsed), the general presumption can no longer be applied.  

30. OLAF argued in its four confirmatory decisions at issue that the judgment in Homoki does not exclude applying the general presumption after closure of the follow-up activities.[25] 

31. The Ombudsman notes that the Commission had explicitly argued before the General Court in Homoki and IMG that the general presumption should continue to apply after the definitive closure of the OLAF investigation[26] and the related follow-up[27].

32. However, as the General Court made clear, “to accept that the various documents relating to inspections, investigations or audits are covered by the exception [in question] [...] subject to an uncertain, future and possibly distant event” - that is, without a clear time limit - “would be contrary to the objective of guaranteeing public access to documents relating to possible irregularities in the management of financial interests, with the aim of giving citizens the opportunity to monitor more effectively the lawfulness of the exercise of public powers”.[28] This temporal scope of the general presumption at issue has been confirmed by the General Court in recent judgments.[29]

33. For the sake of completeness, the General Court accepted in one instance that OLAF could rely on a general presumption of non-disclosure after the follow-up is closed. However, that presumption was based on the need to protect OLAF’s decision-making processes under Article 4(3), second subparagraph, of Regulation 1049/2001.[30] As noted by the Ombudsman in several previous inquiries,[31] this general presumption was only recognised in relation to certain categories of documents in OLAF investigation files, namely internal and preliminary analyses, internal correspondence, and drafts of the final report. This was due to the fact that those documents contained “opinions for internal use as part of deliberations and preliminary consultations”[32].

34. Therefore, OLAF’s new approach according to which all documents in its investigation files, including final reports and recommendations, must, by default, remain non-accessible to the public for an indefinite period of time and in their entirety, cannot be reconciled with the existing case-law; nor is such approach in line with the principles of transparency and accountability that underpin the EU administration’s conduct.[33]

35. The OC judgment,[34] which OLAF cited in its additional views to the Ombudsman, does not alter this conclusion.

36. In that case, the Court of Justice found that, by providing details in a press release that could allow the reader to deduce the identities of individuals, OLAF violated privacy obligations under the EU data protection legislation (Regulation 2018/1725[35]). The judgment showed that details such as gender, nationality, profession, family relations or project-specific information, could allow for the identification of individuals, particularly by persons familiar with the individuals’ professional background.

37. The press release in that case did not include seemingly disconnected details about the person concerned as OLAF contended, but rather extensive information. This judgment is relevant when carrying out individual assessments of documents to determine whether they contain personal data, the disclosure of which could enable the indirect identification of individuals. It does not follow from that judgment that a general presumption of non-disclosure could or should apply to all documents in OLAF investigation files, including final reports and recommendation, even after the follow-up activities are closed.

38. The European Commission’s recent Detailed Rules for the application of Regulation 1049/2001,[36] to which OLAF referred in one[37] of the confirmatory decisions, do not alter this conclusion either.

39. According to the case law, the use of general presumptions “is no insignificant matter”, as they “restrict the fundamental principle of transparency”; therefore, “the use of such presumptions must be founded on reasonable and convincing grounds”.[38]

40. The Ombudsman concludes that OLAF was not justified in applying a general presumption of non-disclosure, based on the need to protect the purpose of its investigations, to the 37 final reports and recommendations at issue in relation to which the investigations and follow-up activities had been closed.

41. Regarding the seven final reports and recommendations where OLAF considered that the follow-up activities were still ongoing, the Ombudsman notes that OLAF sought confirmation from the relevant authorities whether these follow-up activities were indeed still ongoing at the time of the confirmatory decisions.

42. Having inspected the relevant exchanges, the Ombudsman confirms that the competent authorities replied in most cases that the follow-up activities were still ongoing. In two cases, the authorities did not reply. However, information that is publically available confirms that the follow-up is ongoing in one of these two cases[39], and in the other, it would appear OLAF did not in the end consider the follow-up to be ongoing[40].

43. While the Ombudsman acknowledges that OLAF is not responsible for any delay in the follow-up activities by the relevant authorities, the general presumption of non-disclosure to protect the purpose of investigations can only be relied upon while a reasonable period for follow-up has not yet elapsed.[41] In the cases at issue, the follow-up had been ongoing for years, in one case, for almost eight years[42]. It is thus not clear from the confirmatory decisions or the documents inspected whether and, if so, how OLAF assessed that this follow-up period was still reasonable before applying the general presumption.

The Ombudsman’s proposal for a solution

44. In view of the above, the Ombudsman proposes that OLAF,

• in relation to those investigations where the follow-up activities have been closed, carry out an individual assessment of the 37 final reports and recommendations, redacting where necessary personal data, with a view to granting the widest possible public access; and
• provide explanations as to why it considers that the reasonable period for completing the follow-up activities has not yet elapsed in relation to the seven remaining final reports and recommendations.

OLAF is invited to inform the Ombudsman by 1 October 2025 of any action it has taken in relation to the above solution proposal.

Teresa Anjinho
European Ombudsman

Strasbourg, 18/07/2025

 

[1] Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.L_.2021.253.01.0001.01.ENG&toc=OJ%3AL%3A2021%3A253%3ATOC

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

[3] Subject matter of the complaint in case 2327/2024/ACB.

[4] Subject matter of the complaint in case 2328/2024/ACB.

[5] Subject matter of the complaint in case 203/2025/NH.

[6] Subject matter of the complaint in case 2329/2024/OAM.

[7] Seven in the context of complaint 2329/2024/OAM, seven in 203/2025/NH, 30 in 2328/2024/ACB, and one in 2327/2024/ACB (also covered in 2328/2024/ACB).

[8] 2327/2024/ACB, 2328/2024/ACB, 2329/2024/OAM.

[9] See in particular Article 10 of Regulation 883/2013 of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) OJ L 248, 18.9.2013, p. 1–22, available at: https://eur-lex.europa.eu/eli/reg/2013/883/oj/eng.

[10] Defined at Article 2(5) of Regulation 883/2013 as “any person or economic operator suspected of having committed fraud, corruption or any other illegal activity affecting the financial interests of the Union and who is therefore subject to investigation by the Office”.

[11] Case 203/2025/NH.

[12] Adopted in December 2024, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=OJ:L_202403080#anx_1.

[13] The confirmatory decision stated in that regard: “OLAF’s final reports and recommendations require protection because of the sensitive and detailed information they contain. It is in this light that Article 4(2)(g) of the Detailed Rules for the application of Regulation (EC) No 1049/2001, annexed to the Rules of Procedure of the Commission, establishes that there is a presumption that access to documents being part of OLAF investigations undermine the interests protected by Article 4(1) to (3) of Regulation (EC) No 1049/2001”.

[14] Covered in the complaint 2329/2024/OAM (cases No OF/2014/0943, OF/2010/0950, OF/2016/0894); Covered in the complaint 2328/2024/ACB (cases No OF/2015/0521, OC/2016/0158); Covered in the complaint 203/2025/NH (OF/2016/0928; OC/2016/0069).

[15] Provided in the context of 2327/2024/ACB, 2328/2024/ACB, 2329/2024/OAM.

[16] Judgment of the Court of Justice of 7 March 2024, OC v. Commission, C-479/22P, EU:C:2024:215, available at: https://curia.europa.eu/juris/document/document.jsf?text=&docid=283526&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=2926581.

[17] In particular the judgment of the General Court of 1 September 2021, Homoki v Commission, T-517/19, para. 60-63, available at: https://curia.europa.eu/juris/document/document.jsf?text=&docid=245503&pageIndex=0&doclang=FR&mode=req&dir=&occ=first&part=1&cid=8662129.

[18] Case 1628/2023/NH

[19] Complaint in case 2329/2024/OAM.

[20] See, for example, case 657/2024/OAM, decision available at: https://www.ombudsman.europa.eu/en/decision/en/187544; see also the explanations provided by OLAF’s representatives in a meeting with the Ombudsman inquiry team in case 1103/2024/MIK held in September 2024: “OLAF no longer applied the general presumption of non-accessibility to the final report since the follow-up proceedings had been completed.”

[21] Judgment of the General Court of 1 September 2021, Homoki v Commission, T-517/19, available at: https://curia.europa.eu/juris/document/document.jsf?text=&docid=245503&pageIndex=0&doclang=FR&mode=req&dir=&occ=first&part=1&cid=8662129.

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

[23] Homoki judgment referred to above, para. 60-63.

[24] Judgment of the General Court of 26 May 2016, IMG v Commission, T-110/15, para. 33-35, 43 available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62015TJ0110.

[25] See, for example, the confirmatory decisions in 2327/2024/ACB, 2328/2024/ACB.

[26] Homoki, para. 41-42, referred to in footnote 17.

[27] IMG, para. 21, referred to in footnote 24.

[28] Homoki, para. 61-62 emphasis added.

[29] See the judgment of the General Court on 12 July 2023, Eurecna v Commission, T-377/21, para. 32-36, available at: https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX:62021TJ0377; Judgment of the General Court on 12 July 2023, Vendrame v Commission, T-379/21, para. 35, available at: https://curia.europa.eu/juris/document/document.jsf;jsessionid=459D200C45C82F3EC8A87BFF88C6CEED?text=&docid=275367&pageIndex=0&doclang=FR&mode=req&dir=&occ=first&part=1&cid=477731.

[30] Judgment of the General Court of 26 April 2016, Strack v Commission, T-221/08: https://curia.europa.eu/juris/document/document.jsf?text=&docid=177121&pageIndex=0&doclang=FR&mode=req&dir=&occ=first&part=1&cid=24193453.

[31] See decision in case 1103/2024/MIK, available at:  https://www.ombudsman.europa.eu/en/case/en/66622 ; decision in case 1817/2024/MIG; decision in case 1685/2024/MIG available at: https://www.ombudsman.europa.eu/en/decision/en/199445; decision in case 1823/2018/FP https://www.ombudsman.europa.eu/el/decision/en/116566.

[32] In accordance with Article 4(3) second subparagraph of Regulation 1049/2001

[33] Homoki, para. 61-62, referred to in footnote 17.

[34] Judgment of the Court of Justice of 7 March 2024, OC v. Commission, C-479/22P, available at: https://curia.europa.eu/juris/document/document.jsf?text=&docid=283526&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=2926581.

[35] Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 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, available at : https://eur-lex.europa.eu/eli/reg/2018/1725/oj/eng.

[36] Adopted in December 2024, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=OJ:L_202403080#anx_1, according to Article 4(2)(g) of the Detailed Rules, there is a presumption that access to “documents being part of the European Anti-Fraud Office (‘OLAF’) investigations” undermines interests protected by Article 4(1) to (3) of Regulation 1049/2001.

[37] In case 203/2025/NH.

[38] Judgment of the General Court of 25 September 2014, Spirlea v Commission, T-306/12, https://curia.europa.eu/juris/document/document.jsf?text=&docid=157983&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=245014, para. 52.

[39] OC/2016/0069 related to case 203/2025/NH, see https://www.rtbf.be/article/notes-de-frais-abusives-le-tribunal-de-l-ue-confirme-les-montants-reclames-a-l-ancien-ministre-open-vld-karel-pinxten-11432899.

[40] This concerns Case OF/2016/0135 which is not noted in the confirmatory decision (in case 2329/2024/OAM) as being still subject to ongoing follow-up but according to the inspected documents, OLAF sent a status update request to the Irish authorities in that case. Case OF/2010/0950 was noted in the confirmatory decision as being subject to follow-up proceedings, however, it does not seem to be the case according to the documents inspected. 

[41] Judgment in IMG referred above at footnote 24, para. 35; Judgment of the General Court on 12 July 2023, Eurecna v Commission, T-377/21, para. 50-53, available at: https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX:62021TJ0377; Judgment of the General Court on 12 July 2023, Vendrame v Commission, T-379/21, para. 41-47, available at: https://curia.europa.eu/juris/document/document.jsf;jsessionid=459D200C45C82F3EC8A87BFF88C6CEED?text=&docid=275367&pageIndex=0&doclang=FR&mode=req&dir=&occ=first&part=1&cid=477731.

[42] See in case 2329/2024/OAM, report issued in December 2016 (OF/2014/0943)