Head of Unit - C2 Secretariat‐General European Commission

 

Dear Mr X,

The Ombudsman has received a complaint against the European Commission.

The complaint concerns a request for public access to eleven Commission Implementing Decisions determining the 2023 supervisory fees to providers of very large online platforms/very large search engines under the Digital Services Act.

The access request was made in February 2024. In the absence of an initial decision within the applicable time limit, the complainant submitted a confirmatory application. In April 2024, the Commission issued a decision refusing to give public access. At the same time, the Commission “closed” the complainant’s confirmatory application and informed him that he could now make a new one. The complainant then made another confirmatory application challenging the Commission’s refusal of access. The Commission has not yet replied to this second confirmatory application.

In its decision dated 12 April 2024, the Commission identified 11 documents as falling within the scope of the complainant’s access request. It refused to give access to these documents in their entirety, relying on the need to protect the commercial interests of the third parties concerned as well as legal advice and ongoing court proceedings in accordance with Article 4(2), first and second indent of Regulation 1049/2001.

The complainant challenged the application of these exceptions and argued that there is an overriding public interest in disclosure.

We have decided to open an inquiry into the complaint against the European Commission’s decision to refuse access under Regulation 1049/2001.

Regulation 1049/2001 states that applications for access should be handled promptly. It is in line with this principle that the Ombudsman also seeks to deal with cases such as this as quickly as possible.

As a first step, we consider it necessary to review the documents at issue in the complainant’s request. We would be grateful if the Commission could provide the Ombudsman with a copy of these documents, preferably in electronic format through encrypted e-mail,[1] by 15 July 2024.  

The documents subject to the public access request will be treated confidentially, along with any other material the Commission chooses to share with us that it marks confidential. Documents of this kind will be handled and stored in line with this confidential status and will be deleted from the Ombudsman’s files shortly after the inquiry has ended.

The Commission’s position has been set out in its decision dated 12 April 2024. However, should the Commission wish to provide additional views, to be taken into account by the Ombudsman during this inquiry, we would be grateful if they could be provided to us within fifteen working days from the receipt of this letter, that is, by 29 July 2024.

The inquiries officer responsible for the case is Ms Michaela Gehring.

Yours sincerely,

Rosita Hickey
Director of Inquiries

Strasbourg, 09/07/2024

 

[1] Encrypted emails can be sent to our dedicated mailbox.