Following an own-initiative inquiry, the Ombudsman has asked the Council of the EU and the European Commission to improve compliance with EU case law on public access to legislative documents.

The European Court of Justice (ECJ) has found that wider access must be granted to EU legislative documents and the list of exceptions to the right of access to documents must be applied “all the more strictly”.

The Ombudsman’s inquiry looked into how the Council and Commission handled access requests concerning three important pieces of EU legislation, namely the Digital Markets Act, the revision of the Emissions Trading Scheme Directive, and the Minimum Wage Directive.

It found that while the two institutions disclosed a large amount of legislative documents, in many instances they applied the exceptions under the EU access to documents law (Regulation 1049/2001) too broadly.

When using the protection of ongoing decision-making processes as a reason for refusing access to documents, both the Council and the Commission had arguments that were vague, abstract, and unsubstantiated. Their reasoning - including that disclosure would result in external pressure or public misinterpretation - has already been dismissed by the EU Court.

Similarly, arguments presented by both institutions on the need to protect legal advice have also been dismissed by the Court.

The Ombudsman noted that this failure to be consistent with EU case law is deeply concerning in a Union based on the rule of law.

The Ombudsman asked both institutions to promptly disclose legislative documents, even if doing so would give rise to external pressure as this is a factor in any democratic law-making process.

She also asked that access to legislative documents be refused only in truly exceptional circumstances, and that third parties making submissions during the law-making process be informed that their submissions may be disclosed.

The Council and Commission have been asked to indicate how they have implemented the Ombudsman’s suggestions by 3 June 2025.