Background to the complaint

1. On 23 October 2023, the complainant, a journalist, requested public access to documents[1] from EU staff members to the Commission President regarding her position on the Israeli-Palestinian conflict.

2. On 27 October 2023, the Commission asked the complainant to clarify his request. On the same day, the complainant clarified his request by explicit reference to a media publication of 20 October 2023,[2] concerning a letter from EU staff of the same day addressed to the Commission President.

3. In December 2023, at initial stage, the Commission identified one document^[3] as falling within the scope of the request and provided partial access to that document subject to the redaction of personal data.^[4] Concerning the requested letter, the Commission said that it did not hold any document corresponding to the description given by the complainant in his clarification reply of 27 October 2023. 

4. In January 2024, the complainant asked the Commission to review its decision (by making a ‘confirmatory application’). The complainant did not challenge the partial access granted at initial stage. Rather, he argued that the Commission had failed to identify all documents falling within the scope of the request, most notably the letter from EU staff of 20 October 2023.

5. Not having received a reply to his confirmatory application, the complainant first turned to the Ombudsman in May 2024.[5]

6. Following the Ombudsman’s request, on 13 November 2024, more than one year after the complainant’s initial request, the Commission took its confirmatory decision. The Commission confirmed its position that, at the time of the complainant’s initial request, it did not hold any documents that would correspond to the description of the requested letter.

7. Dissatisfied with the Commission’s reply, the complainant turned to the Ombudsman again.

The inquiry

8. The Ombudsman opened an inquiry into how the Commission dealt with the complainant’s request for public access.

9. On 7 February 2025, the Ombudsman shared her preliminary views on the case with the Commission.

10. On 12 March 2025, the Commission replied to the Ombudsman’s preliminary views.

11. On 18 April 2025, the complainant commented on the Ombudsman’s preliminary views and the Commission’s reply.

Arguments presented

12. In its confirmatory decision, the Commission said that its review at confirmatory stage is limited to the scope of the application made initially and cannot be extended.[6] In light of this, the Commission carried out a new search for the documents requested and confirmed that, at the time of the initial request, that is 23 October 2023, it did not hold any further documents corresponding to the request.

13. However, “in a spirit of good will”, the Commission registered on its own initiative a new request[7] concerning three specific documents[8], including the requested letter of 20 October 2023.

14. The complainant noted that media reports of 20 October 2023 referred to a letter allegedly sent on the same day to the Commission President. The complainant made his request for public access to this letter on 23 October 2023, that is, three days later. On 27 October 2023, the complainant clarified the request, by reference to a specific media publication.

15. The complainant expressed strong dissatisfaction with the Commission’s handling of the request. In particular, the complainant considered that it was unclear whether the Commission received the letter after his initial request or whether it had already received the letter but that the letter had not (yet) been registered at the time of his initial request. The complainant argued that Regulation 1049/2001 applies to all documents in the possession of an EU institution.

16.  In any event, in the complainant’s view, it should not have taken the Commission ten months (that is, until the Commission replied to his confirmatory application), to confirm that it did not hold the requested letter.  

The Ombudsman's preliminary views

17. In her preliminary views on the case, the Ombudsman noted that the complainant had clarified his request at an early stage and described in detail the requested letter by reference to a specific media publication. The Ombudsman considered that it was unclear from the confirmatory decision why the Commission could not identify the requested document, which, as reported in media articles, was sent to the Commission President on 20 October 2023, that is, three days prior to the complainant’s initial request.

18. The Ombudsman further noted that, even if the Commission did not hold the requested letter at the time of its initial decision, it was unclear why it had not informed the complainant accordingly as soon as it received the confirmatory application, and in any case within the applicable time limits for dealing with it. The Ombudsman found it  difficult to understand how informing the complainant of this key fact could have taken ten months.

19. Therefore, based on the information provided with the complaint, the Ombudsman’s preliminary view was that how the Commission handled the complainant’s confirmatory application constituted maladministration.

20. When the Ombudsman shared her preliminary views with the Commission, the Commission had not yet replied to the new request[9] that it had registered on its own initiative and that it had mentioned in its confirmatory decision (although the applicable time limit had already expired).[10] The Commission adopted an initial decision concerning this new request on 3 March 2025 and provided full access to the requested letter.

Arguments presented following the Ombudsman’s preliminary views

21. In its reply of 12 March 2025 to the Ombudsman’s preliminary views, the Commission clarified that the requested letter “was never received by the President’s Cabinet” and that it was available online for a short period of time only. The Commission said that it had received the requested letter on 23 April 2024 as an annex to a letter from a stakeholder to the then Commissioner for Budget and Administration.

22. Regarding the information provided to the complainant and the delay in adopting a confirmatory decision, the Commission further clarified that, at confirmatory stage, “before making any statements as to the non-existence of documents requested, it needs to make appropriate internal verifications. The time taken to successfully conclude this process depends on the number and complexity of the documents concerned and the consultations to be carried out.” In this case, the Commission consulted “not only the President’s Cabinet but also other Cabinets. Only after concluding these consultations the Commission was able to confirm whether it held the document requested [...].” The Commission also referred to its increased workload in dealing with confirmatory applications.[11]

23. The Commission further explained, with reference to its detailed rules on the application of Regulation 1049/2001, that “’the cut off’ date, or the date up until when documents are identified, shall be defined as the date of registration of the initial application.”^[12] Therefore, as the requested letter was in the possession of the Commission as of 23 April 2024 only, the Commission considered that it did not fall under the temporal scope of the complainant’s access request. Therefore, it had registered on its own initiative a new request for public access to the requested letter on 13 November 2024.

24. In his comments on the Ombudsman’s preliminary views and the Commission’s reply, the complainant reiterated that the Commission could have informed him of the above as soon as it had received the letter in April 2024, which would have allowed him to make a new request earlier. 

The Ombudsman's assessment

25. The Ombudsman considers that how the Commission dealt with the complainant’s confirmatory application is not satisfactory, for the following reasons.

26. First, the Ombudsman notes that it was only during her inquiry, in March 2025,[13] that the Commission clarified that the President’s Cabinet had never received the requested letter, and that the Commission had therefore not been in the possession of the letter at the time of the initial request in October 2023. Rather, the Commission received the letter, as an annex to a letter from a stakeholder to the then Commissioner for Budget and Administration, in April 2024 only.

27. The fact that the Commission did not communicate this information to the complainant, neither in its initial nor in its confirmatory decision, cannot be good administration.

28. The complainant did not receive, for more than a year, clear information as to why the Commission could not identify the document he requested, which, as reported in media articles, had been sent to the Commission President on 20 October 2023, that is, three days prior to his initial request.

29. Second, the Ombudsman is concerned about the overly formalistic manner in which the Commission treated the complainant’s access request. While during the inquiry it was established that the Commission did not hold[14] the requested letter at the time of the initial request, it is undisputed that, at the time of the confirmatory decision in November 2024, the Commission held the requested letter for six months already.

30. Instead of assessing the document under Regulation 1049/2001, with a view to its potential disclosure, the Commission considered that the letter fell outside the temporal scope of the access request. To support its position, the Commission referred to its administrative practice, formalised in the new detailed rules on the application of Regulation 1049/2001[15], which define the date of registration of the initial application as the ‘cut-off’ date up until when documents are identified.

31. The Ombudsman notes that Regulation 1049/2001 provides for a two-stage procedure,[16] according to which the institution concerned is required to assess the matter anew at confirmatory stage.[17] While applicants cannot extend the scope of their initial application at confirmatory stage, the case law provides that: “being required to carry out a full examination of all the documents covered by an application for disclosure [...] an institution may, at any moment, including for the first time during the examination of the confirmatory application to the application for access, identify further documents potentially related to the application.” [18]  

32. In this case, the Commission was aware of the existence of the requested document at the time of the adoption of its confirmatory decision in November 2024, as the document had been received by the Cabinet of the then Commissioner for Budget and Administration months earlier, in April 2024. While the Ombudsman considers the introduction of a cut-off date for the identification of documents generally reasonable, the reliance on such a date appears overly formalistic where the requested document has already been identified at the confirmatory stage, as in this case.

33. Such formalistic interpretation of the scope of access requests seems difficult to reconcile with the spirit of Regulation 1049/2001, the case law[19], and the principle of the widest possible access to documents. It is certainly not citizen-friendly nor service-minded.

34. Finally, the Ombudsman notes the significant delay in replying to the complainant’s confirmatory application. According to Regulation 1049/2001, the EU institution concerned should, within 15 working days from registration of the request for public access, either grant access to the document requested or, in a written reply, state the reasons for the total or partial refusal. The time limit of 15 working days may be extended by a further 15 working days in exceptional circumstances.

35. In this case, it took the Commission more than ten months to reply to the complainant’s confirmatory application. This delay appears particularly egregious, as the Commission did not even identify all the documents falling within the scope of the request, and instead registered a new initial request. It then took the Commission another four months to reply to this new request, before it granted full access to the requested letter. This request did not either involve numerous or voluminous documents, but access to a single letter.

36. This case is regrettably another example of the significant delays encountered by the Commission in processing public access requests, which the Ombudsman found to amount to maladministration in her own-initiative inquiry into the matter (OI/2/2022/OAM).[20] The Ombudsman has already urged the Commission, in other cases, to find ways and improve its handling of public access requests as a matter of priority. The Ombudsman therefore expects that the Commission will put in place appropriate measures and simplified procedures allowing it to process requests for public access promptly and within the applicable time limits set by the EU legislature.

37. Overall, the Ombudsman finds that how the Commission dealt with the complainant’s access request constituted maladministration.

38. However, as the Commission has in the meantime adopted a new initial decision and provided full access to the requested letter, the Ombudsman sees no useful purpose in making a formal recommendation.

Conclusion

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

The Commission’s handling of the complainant’s request for public access to a letter from EU staff constitutes maladministration.

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

Teresa Anjinho
European Ombudsman

Strasbourg, 01/10/2025

 

[1] 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.

[2] https://www.euractiv.com/section/global-europe/news/eu-staff-criticise-von-der-leyen-over-israel-stance/.

[3] Ares (2023)7883585 - Email from the Delegation of the European Union to Egypt following President’s message on Middle East.

[4] Article 4(1)(b) of Regulation 1049/2001.

[5] Case 795/2024/TM concerning the Commission’s failure to adopt a confirmatory decision within the applicable time limits. 

[6] The Commission referred to the judgment of the General Court of 10 February 2021, XC v European Commission, T-488/18, paragraphs 168-169, available at: https://curia.europa.eu/juris/document/document.jsf?text=&docid=237620&pageIndex=0&doclang=FR&mode=lst&dir=&occ=first&part=1&cid=4120599

[7] Under reference EASE 2024/6052.

[8] In his confirmatory application of 3 January 2024, the complainant clarified his request based on the information in the initial reply and the document disclosed in December 2023. In light of this clarification, the Commission identified the following three documents as falling within the scope of the new request: 

1) MyIntracomm "message to staff concerning events in the Middle East" from the President;

2) Any reply to the e-mail sent on 24 October and the reminder sent on 20 November, and

3) a letter supposedly signed (or supported) by 850 staff members regarding the position of the President and the

Commission on the Israeli-Palestinian conflict as referred to in Euractiv’s article from 20 October 2023.

The complaint to the Ombudsman concerns only the third document, that is, the letter from staff members addressed to the Commission President.   

[9] See paragraph 13 above.

[10] The extended deadline to provide a reply to the new request (EASE 2024/6052) expired on 7 January 2025. The Commission replied on 3 March 2025. 

[11] The Commission referred to its reply to the Ombudsman’s inquiry OI/2/2022/OAM, available at: https://www.ombudsman.europa.eu/en/doc/correspondence/en/167660.

[12] The Commission referred to its practice and to Article 9(6) of its Detailed rules for the application of Regulation 1049/2001, available at: https://eur-lex.europa.eu/eli/dec/2024/3080/oj.

[13] In reply to the Ombudsman’s preliminary views and in its initial reply of 3 March 2025 to the new request EASE 2024/6052.

[14] Within the meaning of Article 2(3) of Regulation 1049/2001. 

[15] These rules were adopted in December 2024, that is, after the Commission took its confirmatory decision in this case.

[16] Articles 7 and 8 of Regulation 1049/2001. See also judgment in case T‑300/10, Internationaler Hilfsfonds eV v Commission, paragraph 68: https://curia.europa.eu/juris/document/document.jsf?text=&docid=122981&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=539976.

[17] Judgment of the General Court of 24 January 2024, T-602/22, Veneziana Energia Risorse Idriche Territorio Ambiente Servizi SpA (Veritas) v European Commission, paragraph 21: https://curia.europa.eu/juris/document/document.jsf?text=&docid=282025&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=25661. 

[18] Judgment of the General Court of 3 May 2018 in case T-653/16, Malta v Commission, paragraph 84: https://curia.europa.eu/juris/document/document.jsf;jsessionid=73753A82E53E014B5A4E3EC2AC596C2B?text=&docid=201693&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=4209999 

[19] Ibid.

On the principle of openness see judgment of the Court of Justice of 22 January 2020 in case C-175/18 P, PTC Therapeutics International Ltd v European Medicines Agency (EMA), paragraphs 51-52: https://curia.europa.eu/juris/document/document.jsf?text=&docid=222502&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3093725

[20] More information about the Ombudsman’s own-initiative inquiry concerning the time the European Commission takes to deal with requests for public access to documents is available at: https://www.ombudsman.europa.eu/en/case/en/60766.