Dear Ms X,

I am following up on the meeting between the Ombudsman inquiry team and representatives from the European Commission that took place on 11 November 2025. The Ombudsman has now received the complainant’s comments on the meeting report.

Specifically, the complainant questions the Commission’s arguments as regards difficulties in identifying documents relevant to his access request. He argues that there exists a mandatory complaint form[1] that requires complainants in State aid procedures to indicate their identity. In addition, referring to the Commission’s Manual of Procedures for State aid cases, he contends that, once the Commission receives a complaint, it has to conduct a preliminary assessment that entails whether the complainant has legal standing in front of the EU courts (and thus, whether they can be considered as an ‘interested party’).[2] Further, he states that this assessment is to be reflected in a ‘preliminary assessment form’ (‘PAF’)[3] and considers that, to deal with his access request, the Commission could have identified the PAFs of each case and granted partial access to the nature of the complainants concerned, without disclosing any sensitive information.

The complainant also elaborates on his position that there is an overriding public interest in disclosure of the requested information. He states that the Commission seemingly does not pursue complaints (as ‘market information’) that are submitted by persons other than ‘interested parties’. He argues that the Commission’s alleged practice was, for example, illustrated by its decision to close a case concerning allegations on the sale price of shares in Hamburger Hafen und Logistik AG (HHLA) to the shipping company MSC. In that case, the complainant contends, the Commission refrained from assessing the substance of the complaint because it had not been made by an ‘interested party’.

Finally, the complainant expresses dissatisfaction about the fact that, in the context of the meeting with the Ombudsman inquiry team, the Commission did not refer to any specific case examples relevant to his request.

Please find attached a copy of the complainant’s detailed comments.

The Ombudsman notes that, in the meantime, the Commission has adopted a confirmatory decision, maintaining that no public access could be granted. In particular, the Commission says that it has not been able to identify any documents falling within the scope of the complainant’s request that would not fall under a general presumption of non-disclosure, based on the need to protect the purpose of investigations.[4] The Commission also reiterates that it does not hold any specific document that would contain the information the complainant is seeking in aggregated form. Finally, the Commission considers that the complainant’s (previously shared) arguments as regards a possible overriding public interest are vague and thus not such as to prove the suspicions that he put forward.

The Ombudsman notes that the EU courts have acknowledged that a general presumption of non-disclosure may be applied to documents forming part of the Commission’s administrative file in a State aid procedure.[5] However, the Ombudsman understands that the complainant is not looking for specific information on individual cases but, rather, for statistical data on the Commission’s procedure as such.

In the Ombudsman’s view, it appears legitimate for a member of the public to seek statistical data on the Commission’s approach to dealing with State aid complaints. The Ombudsman would therefore like to recall that, in its initial decision, the Commission considered that the complainant’s request could be interpreted as a request about its decision-making practice rather than a request for public access to documents.

In light of all this, the Ombudsman would like to propose, as a solution, that the Commission deals with the additional explanations provided by the complainant as a new request for information.

In that case, the Commission could provide the complainant with relevant information on a number of sample cases where (i) it recognised as interested parties entities other than beneficiaries or competitors and (ii) where it conducted an investigation based on ‘market information’ during the last five years.

If the Commission were to agree to this solution, the Ombudsman could close her inquiry.

The Ombudsman would be grateful to receive the Commission’s reply to this proposal for a solution within one month, that is, by 2 March 2026.^[6]

Once the Commission’s reply has been received, the Ombudsman will send a copy of it to the complainant together with a copy of the proposal. The Ombudsman would therefore appreciate it if the Commission could also include a translation of the reply in the language of the complaint (German).

Yours sincerely,

Rosita Hickey
Director of Inquiries

Strasbourg, 28/01/2026

 

[1] ‘Form for the submission of complaints concerning alleged unlawful State aid or misuses of aid’, provided for in Annex IV to Commission Regulation 372/2014 of 9 April 2014 amending Regulation (EC) No 794/2004 as regards the calculation of certain time limits, the handling of complaints, and the identification and protection of confidential information: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32014R0372.

[2] The complainant referred to Section 7, point 4., paragraph (17) of the Commission’s Manual of Procedures for Staid aid: https://op.europa.eu/en/publication-detail/-/publication/a0a0b02a-03ba-467e-82fd-a3eee78b59cb/language-en).

[3] The complainant referred to Section 7, point 4., paragraph (18) of the Commission’s Manual of Procedures for State aid.

[4] In accordance with Article 4(2), third indent of Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents: http://data.europa.eu/eli/reg/2001/1049/oj.

[5] See, for example, Judgment of the Court (Grand Chamber) of 29 June 2010, Commission v Technische Glaswerke Ilmenau, C-139/07 P: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62007CJ0139.

[6] If you wish to submit documents or information that you consider to be confidential, and which should not be disclosed to the complainant, please mark them ‘Confidential’. Encrypted emails can be sent to our dedicated mailbox. Information and documents of this kind will be deleted from the European Ombudsman’s files shortly after the inquiry has ended.