Made in accordance with Article 4(1) of the Statute of the European Ombudsman^[1]

Background to the complaint

1. In January 2024, the complainant made a request for public access[2] to a text message sent by the President of the French Republic to the President of the European Commission concerning the EU-Mercosur trade negotiations. In the absence of an initial decision, the complainant submitted a confirmatory application in May 2025.

2. In its confirmatory decision of July 2025, the Commission stated that it had carried out an exhaustive search but did not identify the requested text message.

3. Dissatisfied with the Commission’s reply, the complainant turned to the European Ombudsman in September 2025.

The inquiry

4. In September 2025, the Ombudsman opened an inquiry into how the Commission handled the complainant’s request for public access.[3]

5. During the inquiry, the Ombudsman inspected the Commission’s file on the public access request.

6. In October 2025, the Ombudsman inquiry team met with the Commission’s representatives to obtain further information on the case. Subsequently, the inquiry team drew up a meeting report[4] that was shared with the complainant, who then provided his comments.

Arguments presented to the Ombudsman

7. In its confirmatory decision, the Commission acknowledged that the President of the French Republic had indeed contacted the Commission President on 28 or 29 January 2024 via the instant messaging application ‘Signal’. However, the requested message could not be retrieved, as the ‘disappearing messages’ feature had been activated on the phone of the Commission President. The Commission argued that the message merely reiterated France’s established position, had “no particular administrative or legal effect” and its content was already known to both parties and the public. The Commission therefore concluded that it had no obligation to register it.[5]

8. Furthermore, the Commission explained that the President uses the instant messaging application ‘Signal’ based on an internal recommendation, which permits the application’s use solely for communicating publicly available information and, in any event, no sensitive or confidential information.[6] The Commission also stated that the ‘disappearing messages’ feature present in ‘Signal’ had been activated based on a recommendation by the relevant services to prevent possible data leaks.[7]

9. In his complaint to the Ombudsman, the complainant contended that the Commission should have retained and disclosed the text message. He argued that, in communications between a Head of State and the Commission President, even a reiteration of a known position may be significant. He also criticised the use of the ‘disappearing messages’ feature, as undermining external scrutiny and the right to access documents. He added that the Commission had failed to specify the deletion interval for the requested message, which prevented him from understanding whether the message was deleted before or after the public access request had been registered. The complainant pointed to a contradiction in the Commission’s argumentation: if, according to the Commission’s internal rules, “short-lived” text messages are unsuitable for the exchange of important information, then the use of the ‘disappearing messages’ feature appears superfluous as such messages can hardly produce a major data leak if disclosed to the public.

10. During the meeting with the Ombudsman inquiry team, the Commission representatives underlined the very strict security requirements for the use of corporate devices in the Commission, including the obligation for users to activate the “disappearing messages” feature on the Signal app in order to minimise security risks (cyber-attacks). In addition to the guidelines and rules identified in the confirmatory decision, they referred to the Annex to the Rules of Procedure of the Commission which also says that text messaging applications shall not be used for important information that is not short-lived (unless required in the interest of the service) and shall comply with recommendations for the automatic disappearance of messages.[8] The Commission representatives noted that the Annex to the Rules of Procedure is currently being challenged before the General Court and invited the Ombudsman to assess whether the inquiry should be closed in order not to interfere with the judicial proceedings.

11. During the meeting, the Ombudsman inquiry team asked the Commission representatives about the time interval in the settings related to “disappearing messages” on the Signal app on the President’s phone. The Commission representatives said that the time interval could not be disclosed for security reasons. They clarified the timeline of the complainant’s request for public access: the request was registered by the Commission’s Secretariat-General on 31 January 2024 and then forwarded to the personal office (Cabinet) of the President of the Commission on 2 February 2024. The Cabinet did not reply to the request. The Commission representatives explained that the ‘Archives’ team in the Cabinet, who had received the request, was responsible for handling a large number of requests and correspondence not only pertaining to public access. They noted that the complainant chose to wait 15 months before submitting a confirmatory application and therefore left his request “dormant”.

12. In his comments on the meeting report, the complainant disagreed with the Commission’s explanations and considered that the timeline of events remained unclear. In particular, he considered that the Commission had failed to clarify whether the President and her Head of Cabinet were aware of the request at the time of their discussion of the message. He said the Commission’s claim that the retention period cannot be disclosed for “security reasons” had not been sufficiently substantiated. No further written paper trail seems to exist concerning the processing of the request after 2 February 2024. Such a practice, the complainant argued, raises serious concerns regarding internal accountability and the proper documentation of administrative procedures. He also took issue with the concept of a “dormant request” as used by the Commission to explain the significant delay in its processing.

The Ombudsman’s assessment leading to a recommendation

Preliminary remarks

13. It follows from Article 228 of the Treaty on the Functioning of the European Union that the Ombudsman “shall conduct inquiries for which he finds grounds […] except where the alleged facts are or have been the subject of legal proceedings.”

14. During the meeting with the Ombudsman inquiry team, the Commission representatives noted that the Annex to the Commission’s  Rules of Procedure, which it had relied upon in the confirmatory decision, is currently being challenged before the General Court.[9] The Commission representatives considered that the Ombudsman’s inquiry in this case essentially aims to assess the “disappearing messages” feature that is one of the elements in the Annex which is challenged before the Court. They invited the Ombudsman to assess whether the inquiry should be closed, in order not to interfere with the judicial proceedings.

15. The Ombudsman reiterates her view[10] that, unless and until the Court issues its judgment on the legality of the Annex at issue, she will not take a position on the Annex as such. The Ombudsman has already made clear that, as the Annex must in any case remain in line with Regulation 1049/2001,[11] she will continue to assess the compliance of individual confirmatory decisions adopted by the Commission with Regulation 1049/2001, as interpreted by the EU courts, and the principles of good administration.

On the timing of the deletion of the text message at issue

16. According to settled EU case-law, if the institution concerned states that it does not hold a requested document, there is a legal presumption that this statement is true and accurate.^[12] While this presumption can be rebutted with relevant and consistent evidence that the requested document exists and is held by the institution concerned, it is for the applicant to provide such evidence. An applicant’s assertion that the alleged lack of a document runs counter to good administrative practice is not sufficient to rebut this legal presumption.^[13]

17. In this case, the Commission confirmed that the text message at issue existed at some point, but that it no longer holds it. There is no reason to doubt the veracity of the Commission’s statement that it is not anymore in the possession of the requested document.

18. The question then is when the text message was automatically deleted.

19. The Ombudsman has consistently held[14] that, as a general rule, an EU institution, body, office or agency should not delete a document that is subject to a request for public access until the process of challenging a refusal to grant access is completed. Having the document at hand allows a proper review to be carried out of the refusal, be it by the European Ombudsman or the Court of Justice of the EU.

20. In this case, neither the inspection of the file nor the explanations provided by the Commission during the meeting enabled the Ombudsman to establish with certainty whether the requested message was automatically deleted before or after the complainant submitted his request for public access. Based on the information provided, the Ombudsman could also not establish at which point in time the Commission searched for the requested document, that is, whether it did so upon receiving the access request or whether the search was conducted only a year later when the Commission replied to the access request. The fact that the Ombudsman could not establish the relevant timelines is an issue in itself.

21. The Ombudsman will deal with the delay in handling the access request in the subsequent section. As regards the timing of the deletion of the message, the Ombudsman suggests that the Commission adapt its internal rules to require that a document is preserved as soon as a request for public access to that document is received, irrespective of the service ultimately responsible for dealing with the substance of it and irrespective of whether it fulfils the Commission’s document registration criteria, until any process of challenging a refusal to grant access is completed.

The delay in handling the public access request

22. The inspection of the Commission’s file demonstrated that the complainant’s request had been registered on 31 January 2024 by the Commission’s Secretariat-General and forwarded to the Cabinet of the Commission President on 2 February 2024. The request remained unaddressed until the complainant submitted his confirmatory application 15 months later, that is, on 28 July 2025.

23. The Ombudsman notes, in this regard, that the Cabinet’s ‘Archives’ team did not react to the attribution of the request. During the meeting with the Ombudsman inquiry team, the Commission representatives explained that the ‘Archives’ team deals with a large number of requests and correspondence not only pertaining to public access. The inspected documents show that the Secretariat-General did not issue any reminder, nor did it take any further action to monitor the processing of the public access request until the complainant submitted his confirmatory application 15 months later.

24. During the meeting with the Ombudsman inquiry team, the Commission representatives argued that the complainant chose not to make a confirmatory application for 15 months and thus left his request “dormant”. The Commission seemed to imply that the complainant should have submitted a confirmatory application immediately after the expiry of the time limit of 15 working days for the Commission to reply to the initial request.

25. Article 7 of Regulation 1049/2001 provides that “1. An application for access to a document shall be handled promptly. An acknowledgement of receipt shall be sent to the applicant. Within 15 working days from registration of the application, the institution shall either grant access to the document requested […] or, in a written reply, state the reasons for the total or partial refusal […]. 2. In the event of a total or partial refusal, the applicant may, within 15 working days of receiving the institution’s reply, make a confirmatory application […]. 3. In exceptional cases, for example in the event of an application relating to a very long document or to a very large number of documents, the time-limit provided for in paragraph 1 may be extended by 15 working days […]. 4. Failure by the institution to reply within the prescribed time-limit shall entitle the applicant to make a confirmatory application”. (emphasis added)

26. It is thus clear that the absence of a confirmatory application within 15 working days of an implicit refusal does not entitle the institution to stop processing the access request. As the Court has held, “[t]he mechanism of an implied refusal decision was established in order to counter the risk that the administration would choose not to reply to an application for access to documents and escape review by the courts, not to render unlawful every decision which is late. On the other hand, the administration is required, in principle, to provide — even late — a reasoned response to every application by a citizen. That approach is consistent with the function of the mechanism of the implied refusal decision, which is to enable citizens to challenge inaction on the part of the administration with a view to obtaining a reasoned response”.[15] The Commission’s argument, according to which the complainant’s request had become “dormant” and could somehow justify the delay of its handling (until the submission of his confirmatory application) is thus not in line with the spirit of Regulation 1049/2001 and the established case-law. It inappropriately shifts the responsibility for delays in handling public access requests from the institution to the applicant.

27. The Ombudsman notes that the principles set out in the Working Methods of the European Commission state that transparency should characterise the work of the Members of the Commission and of their Cabinets, and emphasise the importance of daily cooperation and mutual assistance between the Cabinets and the departments of the Commission.[16]

28. Furthermore, Article 41 of the Charter of Fundamental Rights of the European Union enshrines the right to good administration, which includes, inter alia, the obligations of the administration to take decisions within a reasonable time and give reasons for its decisions.[17]

29. In light of the above, the Ombudsman finds that the way the Commission handled the complainant’s public access request constituted maladministration. She therefore makes a corresponding recommendation below regarding the handling of public access requests when the Cabinet of the President - or of any Commissioner - is involved.

30. The Ombudsman considers that the Commission should take further steps to improve the way it handles public access requests such as the one in this case and to ensure that their progress is closely monitored to avoid undue delays. It is for the Commission to choose the most appropriate means to do so. That said, the Ombudsman believes that measures such as establishing a dedicated functional mailbox, implementing a tracking system and (automatically) sending reminders to the responsible service could ensure that access requests are dealt with properly and within the deadlines set out in Regulation 1049/2001.

How the Commission stores exchanges with Heads of State or Government

31. The Ombudsman has recognised[18] that EU institutions, bodies, offices and agencies do not have a legal obligation to retain copies of every document that comes into their possession; they enjoy a certain discretion in determining which documents they register. At the same time, they have a duty to draw up and retain documentation pertaining to their activities, and to do so as far as possible and in a non-arbitrary and predictable manner.[19]

32. The Commission explained that its rules on records management lay down that “documents 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.”[20] The Commission considered that the text message at issue, in which the President of the French Republic reiterated a position already communicated by France to the Commission on the EU-Mercosur trade negotiations, did not meet these registration criteria.

33. During the meeting with the Ombudsman inquiry team, the Commission representatives said that, in practice, text messages with important content or subject-matter that would require follow-up by the Commission are transmitted to the relevant services for registration and further processing.

34. The Ombudsman takes the view that text messages relating to the Commission’s policies, activities and decisions[21] exchanged between Members of the European Commission and Heads of State or Government, should, at the very least, be retained in some form and for a reasonable amount of time, given their likely significance. This is to ensure that potential requests for public access to such messages can be handled accordingly and to allow for a subsequent review by the Ombudsman or the Court. While this specific inquiry did not concern messages exchanged with ministers, the same reasoning should, by analogy, apply to such communications as well.

35. Without appropriate record-keeping, it becomes very difficult for the Ombudsman or even the Court to verify whether, as the Commission argued, messages exchanged through a mobile messaging application between, in this case, the President of the French Republic and the President of the Commission regarding the EU-Mercosur trade agreement reflected the views of France which were already known and discussed with the Commission. The Ombudsman remains convinced that high transparency in this area enhances public trust of citizens in the actions of their governments and of the EU institutions.

36. Specifically, the Ombudsman suggests that the Commission should ensure, in the future, that all text and instant messages relating to the Commission’s policies, activities and decisions exchanged between Heads of State or Government, or ministers, and Members of the Commission, including those subject to automatic deletion after a certain time interval, are duly preserved for a reasonable period.

Recommendation

On the basis of the inquiry into this complaint, the Ombudsman makes the following recommendation to the Commission:

The Commission should review and improve the way public access requests are handled when the Cabinet of the President - or of any Commissioner - is involved. The Commission should also actively and closely monitor the progress of these requests to avoid undue delays.

The Commission and the complainant will be informed of this recommendation. In accordance with Article 4(2) of the Statute of the European Ombudsman, the Commission shall send a detailed opinion by 3 September 2026.

Suggestions for improvement

The Commission should adapt its internal rules to require that a document is preserved as soon as a request for public access to that document is received and until any process of challenging a refusal to grant access is completed, irrespective of the service ultimately responsible for dealing with the substance of it and of whether it fulfils the Commission’s document registration criteria.

The Commission should ensure that all text and instant messages relating to the Commission’s policies, activities and decisions exchanged between Heads of State or Government, or ministers, and Members of the Commission, including those subject to automatic deletion after a certain time interval, are duly preserved for a reasonable period.

 

Teresa Anjinho

European Ombudsman

Strasbourg, 03/06/2026

 

[1] Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.L_.2021.253.01.0001.01.ENG&toc=OJ%3AL%3A2021%3A253%3ATOC.

[2] Under Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32001R104.

[3] The opening letter to the Commission is available at: https://www.ombudsman.europa.eu/en/opening-summary/en/211703

[4] Meeting Report available at: https://www.ombudsman.europa.eu/en/doc/inspection-report/en/217450.

[5] The Commission referred to Article 7(1) of Decision (EU) 2021/2121 on records management and archives, available at: https://eur-lex.europa.eu/eli/dec/2021/2121/oj and to Article 5(2) letter a) of the Detailed Rules for the application of Regulation (EC) No 1049/2001, Annex to Commission Decision (EU) 2024/3080 of 4 December 2024 establishing the Rules of Procedure of the Commission, available at: https://eur-lex.europa.eu/eli/dec/2024/3080/oj/eng.

[6] “Commission guidelines for acceptable use of public instant messaging applications” of 1 September 2019, not publicly available.

[7] The Commission referred to a “Checklist to make your Signal safer”, dated 8 July 2022, published on the Commission’s intranet (not publicly available).

[8] Article 5(4) of the ‘Detailed Rules for the application of Regulation (EC) No 1049/2001’, see footnote 5.

[9] Cases T-146/25 De Capitani and Others v Commission, and T-641/25 Client Earth v Commission.

[10] See, in that regard, paragraph 30 of the Ombudsman’s closing decision in case 1405/2024/OAM, available at: https://www.ombudsman.europa.eu/en/decision/en/213196.

[11] 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”.

[12] Judgment of the General Court of 23 April 2018, Verein Deutsche Sprache v Commission, case T-468/16, paragraphs 35 - 37; available at: https://curia.europa.eu/juris/liste.jsf?language=en&num=T-468/16

[13] See Order of the Court of 30 January 2019, Verein Deutsche Sprache eV v European Commission, case C-440/18 P, paragraphs 23-24; available at: https://curia.europa.eu/juris/liste.jsf?num=C-440/18&language=en

[14] See the European Ombudsman’s Decision on how the European Commission dealt with a request for public access to emails from its representatives based in Greece concerning the migration situation in two hotspots (case 211/2022/TM), paragraph 24: https://www.ombudsman.europa.eu/en/decision/en/157768.

[15] Judgment of 19 January 2010 of the General Court, Co-Frutta Soc. coop v European Commission, Joined Cases T­355/04 and T-446/04, paragraph 59, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AT%3A2010%3A15.

[16] Communication from the President to the Commission: “The Working Methods of the European Commission”, 1 December 2019, P(2019) 2, available at: https://commissioners.ec.europa.eu/document/download/0dbda7ed-b7fb-4d7e-9e62-6c8b0f54be62_en?filename=working-methods.pdf. The new “Working Methods” adopted in December 2024 (not applicable at the time of the initial application) contain the same principles.

[17] Article 41(1) of the Charter of Fundamental Rights of the European Union, available at: http://data.europa.eu/eli/treaty/char_2012/oj.

[18] See European Ombudsman’s Decision in case 2134/2018/FP on the European Commission’s refusal to give public access to briefing material used by its President in a meeting with the President of the United States, paragraph 12: https://www.ombudsman.europa.eu/en/decision/en/120381.

[19] Judgment of the General Court of 20 September 2019 in T‑433/17, Dehousse v CJEU, paragraphs 47-48, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62017TJ0433.

[20] Article 7(1) of Decision (EU) 2021/2121 on records management and archives, available at: https://eur-lex.europa.eu/eli/dec/2021/2121/oj

[21] According to Article 3(a) of Regulation 1049/2001, "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” (emphasis added).