Background to the complaint

1. On 6 February 2024, the European Commission published its legislative proposal[1] for a recast of the directive on combating the sexual abuse and sexual exploitation of children and child sexual abuse material (the ‘CSAM Directive’[2]). The proposal envisaged, among other things, an amendment of Article 8 of the CSAM Directive. The existing article provides, in essence, that Member States can decide whether certain offences set out in the directive[3] would apply in the context of sexual activities and consensual relationships between peers “who are close in age and degree of psychological and physical development” or where the child has reached the age of sexual consent. The Commission proposed changes to the existing text[4] and added three new paragraphs, which are related to digital matters and the expression of consent.

2. Shortly after the publication of the proposal, the complainant submitted to the Commission a request for public access[5] to “all documents in relation to the recast of Art[icle] 8 ("Consensual sexual activities") of Directive 2011/93”. The complainant wanted to understand the reasoning behind the proposed modification of the article.

3. In April 2024, the Commission replied to the complainant that it did not hold any document falling within the scope of the access request. The complainant challenged this decision (by submitting a ‘confirmatory application’), arguing that the adoption of the legislative proposal would result in major changes to the article at stake, and that he therefore could not “believe” that there were no documents related to this proposed amendment.

4. After a delay and a first intervention of the Ombudsman,[6] the Commission provided its confirmatory decision on 24 August 2024. It identified three documents as falling within the scope of the complainant’s public access request:

1) The published version of the legislative proposal to which it provided full access;

2) A draft version of the relevant provision (Article 8) to which it provided full access; and

3) An internal note of the Commission providing information about the changes proposed to the CSAM Directive, to which the Commission provided wide access, redacting limited personal data[7] only.

5. The Commission also provided, “in the interest of completeness”, references of two publicly available documents, another directive and a legislative proposal for another directive[8], which in its view “directly or indirectly, address aspects of the challenges linked to child sexual abuse and exploitation offences”. The Commission stated that these documents “should address some of [the complainant’s] concerns regarding the changes within [A]rticle 8 of the targeted recast of Directive 2011/93/EU”.

6. Dissatisfied with the Commission’s confirmatory decision, the complainant submitted a new complaint to the Ombudsman in September 2024, arguing that the documents provided by the Commission cannot constitute all documents held by the Commission in relation to the recast of Article 8 of the CSAM Directive.

The inquiry

7. The Ombudsman opened an inquiry into how the Commission handled the complainant’s access request, in particular, whether it identified all documents falling within its scope.

8. In the course of the inquiry, the Ombudsman inquiry team held a meeting with representatives of the Commission.

9. Subsequently, the Ombudsman shared with the complainant a report on the meeting and the complainant provided his comments.

Arguments presented

10. In his complaint, the complainant essentially argued that, given the importance of the matter regulated by the CSAM Directive and the nature of the changes proposed, there should be more documents than those identified by the Commission.

11. During the meeting with the Ombudsman inquiry team, the representatives of the Commission provided the following explanations:

i. As regards the preparation of the legislative proposal in question, the Commission followed the usual procedure in line with its ‘Better Regulation Guidelines’[9]. This involved the consultation of various services of the Commission. In parallel, the Commission prepared a legislative proposal for a new directive on combating violence against women and domestic violence (Directive 2024/1385[10]), the content of which overlapped with the recast of the CSAM Directive to some extent. Due to this overlap, it appeared necessary to align the two proposals and to adapt the legislative proposal for a recast of the CSAM Directive as regards the notion of ‘consent’. The Commission representatives stated that this alignment had taken place late in the process, resulting in the limited amount of documents identified as falling within the scope of the access request;

ii. As regards the processing of the complainant’s access request, the Commission carried out a search in its document management system and in the records of the software used for the relevant internal approval process. In addition, the Commission searched for possible documents and drafts that had not (yet) been registered in the relevant functional mailboxes as well as in the shared drive of the unit in charge of the legislative proposal. It also consulted staff members who had worked on the proposal;

iii. The Commission does not consider the proposed amendment of Article 8 of the CSAM Directive as a change in substance but rather as a matter of clarification. The Commission representatives explained that the proposed changes align with the position of Member States at national level and they ensure that this position is reflected in the EU legal framework, applying a child-protective approach.

12. In his comments on the meeting report, the complainant argued that the proposed changes to Article 8 of the CSAM Directive would entail substantial legal consequences as regards, for instance, the dissemination of material involving children. Therefore, and given the significant number of Commission services involved in the process, there should be more documents reflecting the decision-making process that led to the proposed changes.

The Ombudsman's assessment

13. The right of public access to documents applies only to existing documents that are in the possession of the EU institution concerned.

14. According to EU case law, where an EU institution states in reply to a request for public access to documents that a requested document does not exist, there is a legal presumption that such a statement is true and accurate[11].

15. This presumption can be rebutted with relevant and consistent evidence that the requested document exists and is held by the EU institution concerned. However, it is for the applicant to provide such evidence,[12] which must go beyond a mere belief or suspicion that the documents should exist.

16. In this case, the complainant stated that the proposed change to Article 8 of the CSAM Directive would entail an important modification of the applicable legal regime. He therefore assumed that this change must have been documented. Similarly, the complainant argued that, given the involvement of different Commission services in the drafting of the legislative proposal, he could not “believe” that there was no document elaborating on the proposed amendment of Article 8.

17. In light of the above, arguments of this kind may not, as such, be considered as relevant and consistent evidence[13] within the meaning of the case-law that documents exist in relation with the recast of Article 8 of the CSAM Directive. That said, the complainant argued that the recast of this Article could result in substantial modifications of the legal instruments on combating child sexual abuse. The Ombudsman therefore considered that there was sufficient and reasonable reasons to consider that in this case the complainant had rebutted the presumption of legality and veracity attached to any statement of the institutions relating to the non-existence of documents requested.

18. Where the applicant succeeds in rebutting the said presumption of legality, the institution concerned can still demonstrate the inexistence or non-possession of the requested document(s) by providing plausible explanations enabling the reasons for such non-existence or non-possession to be determined[14].

19. In the course of the inquiry, the Commission stated that its service responsible for preparing the legislative proposal at issue had become aware of an overlap with another legislative proposal at a late stage in the process[15]. The Commission services concerned had then decided to align the wording of the two proposals to ensure coherence as regards the notion of ‘consent’. It was in this context that Article 8 of the CSAM Directive was amended, following oral exchanges between the Commission services involved. No documents other than the draft proposal had been drawn up in this regard, including no records of the oral exchanges. 

20. The Commission also provided information on how it processed the complainant’s access request. More specifically, the Commission said that it searched for documents recorded in its document management and approval systems. In addition, it searched for possible relevant emails and draft documents and consulted the staff members who had been involved in the preparation of the legislative proposal. This had not resulted in the identification of any additional document that would fall within the complainant’s access request.

21. The Ombudsman finds plausible the explanations that the Commission provided on the drafting process of the legislative proposal. In addition, the Ombudsman considers that the Commission conducted a thorough search, with a view to identifying relevant documents. This search notably extended to possible emails and draft documents. There is no reason to doubt that the Commission indeed conducted this search, nor that it did lead to the identification of any additional documents.

22. That said, as stated above, the Ombudsman finds reasonable the expectation that a legislative change, in particular in the context of a recast, would be duly documented. The Ombudsman thus regrets that, in its confirmatory decision, the Commission did not provide the complainant with more detailed explanations about the reason why, in this particular case, no document existed. Although the Commission provided this information during the meeting with the Ombudsman’s inquiry team, and subsequently accepted to share it with the complainant (meeting report), the Ombudsman takes that view that providing such information and/or explanations  at the stage of the  confirmatory decision would have enabled the complainant to have a better understanding of why no additional documents existed.

Conclusion

Based on the inquiry, the Ombudsman finds it appropriate to close this case with the following conclusion:

No further inquiries are justified.

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

 

Teresa Anjinho

European Ombudsman

 

Strasbourg, 15/04/2025

 

[1] https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM%3A2024%3A60%3AFIN

[2] Directive 2011/93/EU on combating the sexual abuse and sexual exploitation of children and child pornography: https://eur-lex.europa.eu/eli/dir/2011/93/oj/eng

[3] For instance, “the production, acquisition or possession of material involving children who have reached the age of sexual consent where that material is produced and possessed with the consent of those children and only for the private use of the persons involved, in so far as the acts did not involve any abuse”.

[4] For instance, the deletion of the reference to “peers who are close in age and degree of psychological development or maturity”.

[5] 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.

[6] See case 1436/2024/MAG https://www.ombudsman.europa.eu/en/case/en/66947

[7] In accordance with Article 4(1)(b) of Regulation 1049/2001.

[8] Directive 2012/29/EU on establishing minimum standards on the rights, support and protection of victims of crime: https://eur-lex.europa.eu/eli/dir/2012/29/oj/eng and Proposal for a Directive on combating violence against

women and domestic violence: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:52022PC0105 (Directive 2024/1385: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32024L1385).

[9] The Better Regulation Guidelines set out the principles that the European Commission follows when preparing new initiatives and proposals and when managing and evaluating existing legislation:

https://commission.europa.eu/law/law-making-process/better-regulation_en

[10] See footnote 8 above.

[11] See judgement of the General Court of 23 April 2018, case T‑468/16, Verein Deutsche Sprache v Commission, paragraphs 34-35: https://curia.europa.eu/juris/document/document.jsf?text=&docid=201394&pageIndex=0&doclang=FR&mode=lst&dir=&occ=first&part=1&cid=2400999

[12] Idem, Verein Deutsche Sprache v Commission, paragraphs para 35.

[13] See judgment of the General Court of 25 September 2018, Psara and others v Commision, cases T‑639/15 to T‑666/15 and T‑94/16 para 33 https://curia.europa.eu/juris/document/document.jsf?text=&docid=206663&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=1918688

[14] See judgment of the Tribunal of 20 September 2019 in case T‑433/17, Dehousse v CJUE, para 49; https://curia.europa.eu/juris/document/document.jsf?text=&docid=217989&pageIndex=0&doclang=FR&mode=lst&dir=&occ=first&part=1&cid=1138335

[15] See references to the legislative proposals in question in footnote 8 above.