Background to the complaint

1. In February and March 2024, the complainant made two requests for public access to documents[1] to the European Commission concerning certain documents related to the Commission’s proposal for the revision of the Construction Products Regulation (hereafter ‘the CPR proposal’).[2] Concretely, the complainant sought public access to (i) draft versions 45, 50 and 55 of the CPR proposal[3] and (ii) document “NewCPR-learnings-v6.doc”.[4]

2. In its initial replies, the Commission said that it was not in a position to satisfy the requests, since it did not hold any documents corresponding to the description in the complainant’s applications.

3. The complainant contested the Commission’s position and asked for a review (by making ‘confirmatory applications’).

4. In August 2024, the Commission adopted a confirmatory decision in relation to both requests. The Commission confirmed its previous positions.

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

The inquiry

6. The Ombudsman opened an inquiry into the Commission’s decision that it cannot satisfy the complainant’s access requests, given that it does not hold any documents falling within their scope.

7. During the inquiry, the Ombudsman inquiry team met with representatives of the Commission. The Ombudsman drew up a report on the meeting and the complainant subsequently provided comments on the report.

Arguments presented to the Ombudsman

8. In the confirmatory decision, the Commission referred to Article 2(3) of Regulation 1049/2001, which provides that a document must be ‘in the possession’ of an institution and to relevant EU case-law stating that there is no obligation to create a document which does not exist.[5] Furthermore, the Commission argued that it is not under the obligation to prove the non-existence or non-possession of documents, but rather to provide explanations that determine the reasons for such non-existence or non-possession.[6]

9. 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]

10. The Commission did not contest that, at a certain moment in time, the documents sought by the complainant existed. However, it noted that “the requested documents did not meet all the registration criteria which must be cumulative”. The Commission stated that the CPR proposal’s drafting process spanned over a year, during which multiple versions were developed. Each version progressively incorporated feedback, with subsequent drafts replacing earlier ones until a final version was submitted for hierarchical validation. The Commission’s view was that “a document is considered ‘drawn up’ only if it is ‘stable’, meaning that it has been approved as ready for transmission by the person who is empowered to take responsibility for its content in accordance with the rules and regulations applying to the underlying ‘business process’.” The Commission argued that the documents at stake were not stable, as they were never validated by a person empowered to take responsibility for their content.

11. The Commission also noted that the complainant’s first public access request concerned three draft versions of the CPR proposal, which were superseded by several subsequent versions. The second public access request concerned an internal document containing purely personal views of its author, which were not considered as stable, nor validated by the person empowered to take responsibility for its content.

12. For these reasons, the Commission concluded that it did not hold any documents that fell within the scope of the complainant’s initial applications, and thus was not in a position to fulfil the requests.

13. During the meeting with the Ombudsman inquiry team, the Commission representatives explained that there were more than 150 draft versions of the CPR proposal. The three versions sought by the complainant were early drafts that were neither officially approved by the hierarchy of the responsible Commission Directorate-General (DG) nor circulated outside the respective DG. The Commission representatives confirmed that the relevant drafts existed at the time of the initial application and still existed at the time of the meeting, however only in the internal folders of the team in charge of the file.

14. The Commission representatives said that the disclosure of any draft, short-lived version of a document, whose content is not stable and has therefore not been approved, would not be manageable for the Commission. This is why the Commission consistently applies its policy that only stable approved versions of documents have to be registered in its document management system and that only registered documents fall within the scope of Regulation 1049/2001.[8]

15. During the meeting, the Commission representatives also confirmed that, despite several searches, the document requested in the second public access request (document “NewCPR-learnings-v6.doc”) was not found.

16. The complainant stated that he is in possession of some of these documents, but he is seeking public access to use them publicly.

17. The complainant disagreed with the Commission’s argument that, for a document to fall within the scope of Regulation 1049/2001, it needs to have certain stability and/or a function. Nevertheless, in this case, and contrary to the Commission’s statement, he was aware that one of the draft versions he requested was validated by middle management and probably shared within and outside the responsible Commission DG. As for the document subject to his second request, it was also validated by middle management, used for an internal presentation and thus disseminated to staff within the responsible DG. For this reason, the complainant questioned the fact that the Commission was unable to find it.

18. In his comments on the meeting report, the complainant further argued that the Court of Justice of the EU “adopted a broad and purpose-oriented interpretation of what constitutes a ‘document’”. The complainant noted that, according to case-law, the format or degree of formality is irrelevant,[9] documents do not need to be formally transmitted or officially registered,[10] and internal and preparatory documents are included in the definition of a document.[11]

19. The complainant argued that, by considering that only registered documents fall within the scope of Regulation 1049/2001, the Commission acts against the case-law and reduces the scope of the Regulation. Furthermore, the Commission’s ability to manage public access requests is not a rejection criterion according to the Court and, in any case, the disclosure of the three drafts in question could not constitute an unmanageable administrative burden.

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.[12] 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 is yet another case brought to the attention of the Ombudsman 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^[13] 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”.[14] 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”.[15] 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’.[16]

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.[17] 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.[18] Registering a document is a consequence of the existence of a document and not a pre-requisite for its existence.

25. In this case, the Commission did not contest that the documents requested by the complainant existed at a certain point in time.

26. However, in relation to the document “NewCPR-learnings-v6.doc”, the Commission representatives clarified during the meeting with the Ombudsman inquiry team that, despite several searches, this document could not be found. According to EU case-law,[19] there is a presumption of veracity attached to EU institutions’ statements, according to which an institution’s statement that a document does not exist or that the institution does not hold the requested document(s) is deemed to be true and accurate. The presumption can however be rebutted if the applicant puts forward relevant and consistent evidence calling it into question, going beyond a mere belief or suspicion that the document exists or should be in the possession of the institution.[20] The Ombudsman considers that the complainant’s assertion that this document was used for an internal presentation some years ago and was disseminated to staff within the responsible DG does not constitute sufficient evidence proving that, even if this document existed in the past, the Commission was still in its possession at the time of his request, given that it was not registered.

27. As regards the requested three draft versions of the CPR proposal, the Commission representatives clarified during the meeting with the Ombudsman inquiry team that these documents existed at the time of the complainant’s request, as well as at the time of the meeting. The three documents were located by the Commission in internal folders, not in its document management system. However, rather than identifying and assessing these drafts in light of their possible disclosure under Regulation 1049/2001, the Commission said that it does not hold them, given that they do not fulfil the applicable registration criteria.

28. The three drafts are working versions of a Commission proposal to revise EU legislation in the context of the internal market for construction products. There is no doubt that they were “drawn up” by Commission staff and that they concern a matter relating to the “policies, activities and decisions falling within [the Commission's] sphere of responsibility”. 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. The Ombudsman therefore considers that the drafts in question are ‘documents’ within the meaning of Regulation 1049/2001.

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

30. The Ombudsman considers that issuing a recommendation in this case is not warranted since 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.[21]

31. Finally, the Ombudsman notes that the Commission’s new detailed rules for the application of Regulation 1049/2001,[22] adopted after the confirmatory decision in this case, are currently contested before the General Court.[23] 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,[24] 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 one of the complainant’s public access requests. 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, 15/10/2025

 

[1] 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] Proposal for a Regulation laying down harmonised conditions for the marketing of construction products, amending Regulation (EU) 2019/1020 and repealing Regulation (EU) 305/2011: https://ec.europa.eu/docsroom/documents/49315. The Commission’s proposal came in March 2022 and following negotiations by the co-legislator, a new Regulation was adopted in November 2024: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=OJ:L_202403110.

[3] Registered under EASE 2024/1163.

[4] Registered under EASE 2024/1653.

[5] The Commission referred to the judgment of the Court of Justice of 2 October 2014, Strack v European Commission, C-127/13 P, paragraph 46: https://curia.europa.eu/juris/liste.jsf?language=en&num=C-127/13%20P and 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 28 October 2020, Franklin Dehousse v Court of Justice of the European Union, T-857/19, paragraph 80: https://curia.europa.eu/juris/liste.jsf?num=T-857/19&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] Pursuant to Commission guidelines on document registration with reference Ares(2018)5874624, available at: https://ec.europa.eu/transparency/documents-request/search/document-details/7251.

[9] The complainant referred to the judgment of the General Court (Second Chamber) of 19 January 2010, Co-Frutta v Commission, T-355/04: https://curia.europa.eu/juris/document/document.jsf?text=&docid=75539&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=6098851, judgment of the Court of First Instance (Fourth Chamber) of 25 April 2007, WWF European Policy Programme v Council, T-264/04: https://curia.europa.eu/juris/liste.jsf?language=en&num=T-264/04, judgment of the General Court (First Chamber) of 7 July 2010, Agrofert Holding v Commission, T-111/07: https://curia.europa.eu/juris/liste.jsf?language=en&num=T-111/07, judgment of the General Court (Fourth Chamber) of 22 May 2012, EnBW Energie Baden-Württemberg v Commission, T-344/08: https://curia.europa.eu/juris/liste.jsf?num=T-344/08&language=EN.

[10] The complainant referred to the judgment of the Court (Second Chamber) of 2 October 2014, Strack v Commission, C-127/13 P: https://curia.europa.eu/juris/liste.jsf?language=en&num=C-127/13%20P and the judgment of the General Court (Third Chamber) of 26 October 2011, Dufour v ECB, T-436/09: https://curia.europa.eu/juris/liste.jsf?language=en&num=T-436/09.

[11] The complainant referred to the judgment of the Court of First Instance (Seventh Chamber) of 18 December 2008, Muñiz v Commission, T-144/05: https://curia.europa.eu/juris/liste.jsf?lgrec=fr&td=%3BALL&language=en&num=T-144/05&jur=T, WWF European Policy Programme v Council, T-264/04 and the judgment of the Court (First Chamber) of 21 July 2011, Sweden v MyTravel and Commission, C-506/08 P: https://curia.europa.eu/juris/liste.jsf?language=en&num=C-506/08.

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

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

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

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

[16] 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.

[17] This has recently been confirmed by the General Court in the judgment of 14 May 2025 Stevi and the NYT v Commission, T-36/23, paragraphs 62-68: https://curia.europa.eu/juris/liste.jsf?num=T-36/23.

[18] See in that regard the Ombudsman’s findings in cases 1050/2018/DL, 1316/2021/MIG, 211/2022/TM, 1378/2022/TM, 1405/2024/OAM.

[19] See, for example, judgment of the General Court of 11 June 2015, McCullough v Cedefop, T-496/13:

https://curia.europa.eu/juris/document/document.jsf?text=&docid=164964&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=6138132.

[20] See judgment of the General Court of 25 September 2018, Psara et al. v European Parliament, Joined Cases T-639/15 to T-666/15 and T-94/16, paragraphs 33-34: https://curia.europa.eu/juris/liste.jsf?num=T-639/15&language=en; see also judgment of 20 September 2019, Dehousse v Court of Justice of the European Union, T‑433/17, paragraphs 36-37 and the case-law cited: https://curia.europa.eu/juris/liste.jsf?lgrec=fr&td=%3BALL&language=en&num=T-433/17&jur=T.

[21] See footnote 18.

[22] 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.

[23]  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.

[24] 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”.