Background to the complaint

1. In 2023, the complainant submitted a complaint to the European Commission concerning breaches of EU law by Spain (hereafter ‘the infringement complaint’).[1] The Commission did not pursue the infringement complaint and informed the complainant accordingly via a pre-closure letter and, subsequently, a closure letter.

2. In April 2024, the complainant made a request to the Commission under the EU legislation on public access to documents (Regulation 1049/2001).[2] He asked for public access to documents related to his infringement complaint, more specifically, Commission internal documents and any communications with Spain, while excluding those documents exchanged with him.

3. In May 2024, the Commission replied that it was not in a position to satisfy the request, since it did not hold any documents corresponding to the description in the complainant’s request. It said that the right of access to documents applies only to documents registered in an institution’s document management system. It added that internal exchanges between the Commission services and other texts circulated in the context of an informal, preliminary exchange of views between colleagues, such as comments on draft documents, do not constitute documents held by the Commission within the meaning of Regulation 1049/2001, and were therefore not subject to disclosure.

4. The complainant asked the Commission to review its position, by making a ‘confirmatory application’, arguing that, as long as internal documents related to the infringement complaint exist, he would like to receive them.

5. In July 2024, the Commission confirmed its position that it does not possess any documents corresponding to the request. As regards any internal documents, the Commission referred to the existence of emails exchanged between its staff in respect to the infringement complaint. However, the Commission noted that these exchanges were not registered in its document management system, given that they do not fulfil the applicable registration criteria. In the Commission’s view, it therefore does not hold these exchanges for the purposes of Regulation 1049/2001. It informed the complainant that, in any case, the outcome of these exchanges was communicated to him in the subsequent formal letters.

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

The inquiry

7. The Ombudsman opened an inquiry into the Commission’s decision that it cannot satisfy the complainant’s access request, given that it does not possess any documents falling within its scope.

8. In the course of the inquiry, the Ombudsman inquiry team inspected copies of the ‘internal documents’ related to the infringement complaint, as referred to in the Commission’s confirmatory decision.

9. The Ombudsman invited the Commission to provide additional views on the complaint. The Commission did not provide any additional views.

Arguments presented

10. The complainant recalled that, under Article 3(a) of Regulation 1049/2001, a ‘document’ “shall mean any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) concerning a matter relating to the policies, activities and decisions falling within the institution’s sphere of responsibility”. He argued that internal documents related to his infringement complaint concern a matter relating to the policies, activities and decisions falling within the Commission’s sphere of responsibility. Those internal documents thus satisfy the definition above and fall within the scope of Regulation 1049/2001, even if they were not registered.

11. The complainant referred to the Ombudsman’s findings in case 1316/2021/MIG,[3] notably that for the purpose of public access it is irrelevant whether a document has been registered in an institution’s document management system.

12. The complainant recalled that, in the context of his infringement complaint, the Commission said that it had “carefully assessed” the complaint and “followed closely” the issue at hand. By accessing the requested documents, the complainant seeks to understand how the Commission exercises its discretionary power in deciding whether and when to commence an infringement procedure.[4] He considered that there would be no harm in disclosure of the documents, as the infringement complaint was closed.

13. The complainant did not take issue with the non-existence of any correspondence exchanged with Spain.

14. The Commission said that it does not have to register and keep all documents it processes. It furthermore recalled that the right of public access to documents applies to existing documents only[5] and that once an institution says no documents exist there is a presumption of legality that this statement is true and accurate,[6] unless the applicant can rebut it.

15. In the Commission’s view, the registration of a document is relevant for the purposes of Regulation 1049/2001. The Commission referred to Article 2(3) which provides that a document must be ‘in the possession’ of an institution. To enhance transparency and facilitate the effective application of Regulation 1049/2001, the Commission has put in place a document management system to register all content that qualifies as ‘document’ under the Regulation. According to the Commission, this system is crucial to manage the large volume of documents and public access requests. The Commission referred to its decision on records management that sets out that “[d]ocuments shall be registered if they contain important information which is not short-lived or if they may involve action or follow-up by the Commission or one of its departments”.[7] Documents that do not fulfil the registration criteria are not registered: “[s]uch short-lived, ephemeral documents are not kept, and, as a consequence, are not in the possession of the institution pursuant to Article 2(3).”

16. The Commission explained that emails do not meet the registration criteria “if they are circulated within an informal, preliminary exchange of views between colleagues or containing iterations of a preliminary document the content of which is embodied or superseded by other documents.” The internal exchanges between its staff in relation to the infringement complaint at issue were such emails. The result of these exchanges is reflected in the pre-closure and closure letters sent to the complainant, which are the formally adopted and registered documents related to the infringement complaint. Finally, the Commission noted that there was no correspondence exchanged with Spain in relation to the infringement complaint at issue.

17. The Commission clarified that its statement about "carefully assessing" the infringement complaint did not imply the existence of documents but reflected its evaluation leading to the decision not to pursue the case. It also provided further explanations to the complainant about its assessment of the infringement complaint and how it had reached the decision to close it.

18. The Commission concluded that the complainant did not put forward sufficient arguments to rebut the presumption of legality attached to statements that the Commission does not hold the requested documents.

19. In his further submission to the Ombudsman, the complainant referred to a recent judgment of the General Court,[8] which in his view supports the arguments in his complaint that the registration of documents is irrelevant for the purposes of Regulation 1049/2001.

The Ombudsman's assessment

20. The Ombudsman is a redress mechanism under Regulation 1049/2001. Where an EU institution refuses, in full or in part, public access at confirmatory stage or fails to reply to a confirmatory application within the prescribed time-limit, the applicant for public access can make a complaint to the Ombudsman.[9] In such cases, the Ombudsman’s role is to assess whether the institution’s confirmatory decision (explicit or implicit) is in line with Regulation 1049/2001, as interpreted by the EU courts, and the principles of good administration.

21. This case is essentially about the definition of a ‘document’ under Regulation 1049/2001, and whether documents not fulfilling the Commission’s internal document registration criteria can be considered to be ‘held by the institution concerned’ so that they fall within the scope of Regulation 1049/2001.

22. The Ombudsman’s established view on this matter^[10] is that a document’s registration in the document management system of the institution concerned by an access request is not decisive for the purpose of the definition of a ‘document’ under Regulation 1049/2001.

23. Regulation 1049/2001 applies to all documents held by an EU institution, that is, to “documents drawn up or received by it and in its possession, in all areas of activity of the European Union”.[11] According to that Regulation, a document is “any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) concerning a matter relating to the policies, activities and decisions falling within the institution's sphere of responsibility”.[12] The EU Courts have also confirmed that this definition ‘is essentially based on the existence of content that is saved and that may be copied or consulted after it has been generated, it being understood that the nature of the storage medium on which content is saved, the type and nature of the content stored, and the size, length, volume or presentation of the content have no bearing on the question whether or not it falls within the abovementioned definition and that the only restriction on the content that falls within that definition is the condition that it must relate to the policies, activities or decisions of the institution in question’.[13]

24. The Ombudsman agrees that the registration of a document facilitates the document’s retrieval, and that it is therefore reasonable for the Commission to start its search for documents in its document management system. However, if individuals submit targeted requests for public access to specific documents, the Commission has to search outside its document management system.[14] If the Commission subsequently locates the requested documents, it must assess them for disclosure under Regulation 1049/2001 - regardless of whether they were registered and/or whether they meet the registration criteria.[15] Registering a document is a consequence of the existence of a document and not a pre-requisite for its existence.

25. In its confirmatory decision in this case, the Commission referred to the legal presumption according to which an institution’s statement that it does not hold the requested documents is deemed to be true and accurate.^[16]

26. At the same time, the Commission acknowledged that it had located relevant internal documents, referring to emails exchanged between its staff in relation to the complainant’s infringement complaint. However, rather than identifying and assessing these emails in light of their possible disclosure under Regulation 1049/2001, the Commission said it does not hold them, given that they do not fulfil the applicable registration criteria.

27. Based on an inspection of these email exchanges by the Ombudsman inquiry team, the Ombudsman confirms that they were “drawn up” by Commission staff. Even if they were not recorded in the Commission’s document management system, their content has been saved and could be copied or consulted after it has been generated. Furthermore, the email exchanges concern a matter relating to the “policies, activities and decisions falling within [the Commission's] sphere of responsibility”, that is, the assessment of an infringement complaint. The Ombudsman therefore considers that the email exchanges in question are ‘documents’ within the meaning of Regulation 1049/2001.

28. Therefore, the Commission should have assessed the email exchanges in question in view of their possible disclosure under Regulation 1049/2001. The fact that the Commission did not do so constitutes maladministration.

29. While the Ombudsman thus disagrees with how the Commission handled the request, she considers that pursuing the inquiry with a recommendation to assess the email exchanges under Regulation 1049/2001 will not serve a useful purpose. This is because the Ombudsman has consistently held that the Commission’s practice of linking the registration of documents with their identification and processing under Regulation 1049/2001 is problematic,[17] including in her recommendation in case 1316/2023/MIG. It cannot be good administration to search for documents (following a precise request from a requester), locate them and then inform the requester that, because they do not meet the registration criteria, they are not in the Commission’s possession and therefore are not covered by Regulation 1049/2001. The Ombudsman therefore closes this case with a finding of maladministration.

30. Finally, the Ombudsman notes that the Commission’s new detailed rules for the application of Regulation 1049/2001,[18] adopted after the confirmatory decision in this case, are currently contested before the General Court.[19] The detailed rules define terms like “documents held by the Commission”, “documents drawn up by the Commission”, and “documents received by the Commission”. Unless and until the Court issues its judgment on the legality of these rules, the Ombudsman will not take a position on the detailed rules as such. As the detailed rules must in any case remain in line with Regulation 1049/2001,[20] the Ombudsman will continue to assess the compliance of individual confirmatory decisions adopted by the Commission, which are brought to her attention, with Regulation 1049/2001, as interpreted by the EU courts, and the principles of good administration.

Conclusion

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

The Ombudsman finds that there was maladministration in how the Commission handled the complainant’s public access request. She however considers that a recommendation is not warranted in this case since she has already found in the context of previous inquiries that the Commission’s practice of linking the registration of documents with their identification and processing under Regulation 1049/2001 is problematic.

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

Teresa Anjinho
European Ombudsman

Strasbourg, 14/10/2025

 

[1] More information about the Commission’s handling of complaints concerning breaches of EU law by Member States is available at: https://commission.europa.eu/about/contact/problems-and-complaints/complaints-about-breaches-eu-law-member-states/report-breach-eu-law-eu-country_en

[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] Available at: https://www.ombudsman.europa.eu/en/case/en/59777.

[4] Under Commission’s Communication EU law, better results through better application, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.C_.2017.018.01.0010.01.ENG.

[5] The Commission referred to the judgment of the Court of Justice of 11 January 2017, Typke v European Commission, C-491/15 P, paragraph 31: https://curia.europa.eu/juris/liste.jsf?language=en&num=C-491/15. 

[6] The Commission referred to the judgment of the General Court of 23 April 2018, Vereine Deutsche Sprache v European Commission, T-468/16, paragraphs 35-36: https://curia.europa.eu/juris/liste.jsf?num=T-468/16&language=en.

[7] The Commission referred to Article 7(1) Commission Decision (EU) 2021/2121 of 6 July 2020 on records management and archives: https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32021D2121.

[8] Judgment of the General Court of 14 May 2025, Stevi and the NYT v Commission, T‑36/23: https://curia.europa.eu/juris/liste.jsf?num=T-36/23.

[9] Articles 8(1) and (3) of Regulation 1049/2001.

[10] See in that regard the Ombudsman’s findings in case 1316/2021/MIG.

[11] Article 2(3) of Regulation 1049/2001.

[12] Article 3(a) of Regulation 1049/2001.

[13] Judgment of the General Court of 22 February 2015, Breyer v Commission, T-188/12, paragraph 42: https://curia.europa.eu/juris/document/document.jsf?text=&docid=162573&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=165954.

[14] This has recently been confirmed by the General Court in the judgment Stevi and the NYT v Commission, paragraphs 62-68: https://curia.europa.eu/juris/liste.jsf?num=T-36/23.

[15] See in that regard the Ombudsman’s findings in cases 1050/2018/DL, 1316/2021/MIG, 211/2022/TM, 1378/2022/TM.

[16] Verein Deutsche Sprach v Commission, paragraphs 35 - 37; available at: https://curia.europa.eu/juris/liste.jsf?language=en&num=T-468/16  

[17] See footnote 15.

[18] See the Commission’s detailed rules for the application of Regulation (EC) No 1049/2001 of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=OJ:L_202403080#anx_1:~:text=p.%C2%A060).-,ANNEX,Council%20regarding%20public%20access%20to%20European%20Parliament%2C%20Council%20and%20Commission%20documents,-Whereas%3A.

[19] Case T-146/25, De Capitani and Others v Commission: https://curia.europa.eu/juris/liste.jsf?lgrec=fr&td=;ALL&language=en&num=T-146/25&jur=T; Case T-641/25, ClientEarth v Commission, the summary of the pleadings is not yet public.

[20] In line with Article 15(3) of the Treaty on the Functioning of the European Union, which requires each institution, body, office or agency to “elaborate in its own Rules of Procedure specific provisions regarding access to its documents, in accordance with the regulations referred to in the second subparagraph”. The General Court held that Rules of Procedure adopted by the Commission (in Joined Cases T-371/20 and T-554/20, Pollinis v Commission, paragraph 93) or conclusions adopted by the Council (in case T-255/24, Nouwen v Council, paragraph 103) must remain in line with Regulation 1049/2001. In the latter case, the Court held that “[t]he scope of the obligations incumbent upon an EU institution under Regulation No 1049/2001, as interpreted by the Courts of the European Union, cannot depend on the content of acts, such as the Council’s conclusions, adopted by the institution concerned itself”.