President European Commission

 

Dear President,

I am writing to seek a solution in this case concerning the European Commission’s implicit refusal to grant public access to documents related to a project funded in partnership with UNICEF.

At initial stage, the Commission identified two documents as falling within the scope of the request, namely the contribution agreement between the Commission and UNICEF[1] (document 1) and the final inception report for Portugal[2] (document 2).

The Commission granted partial access to document 1, invoking the protection of the public interest as regards international relations[3] and the financial, monetary or economic policy of the Union or a Member State[4], as well as the protection of the decision-making process of the Commission[5], the commercial interests of a legal person[6] and the privacy and the integrity of the individual[7]. The Commission refused to disclose document 2 in its entirety, relying on the need to protect the public interest as regards international relations, the financial, monetary or economic policy of the Union or a Member State and the decision-making process of the Commission.

The complainant asked the Commission to review its initial decision (by making a ‘confirmatory application’), but the Commission did not reply within the time limits set out in Regulation 1049/2001. Dissatisfied, the complainant turned to my Office.

Upon the opening of an inquiry into this complaint in November 2025, the Commission was invited to adopt an explicit confirmatory decision without further delay.

On 6 February 2026, in the absence of an explicit confirmatory decision, my Office asked the Commission to provide copies of the requested documents so that my inquiry team could inspect them.

EU institutions enjoy a wide margin of discretion when determining whether the disclosure of documents could undermine the interests protected by Article 4(1)(a) of Regulation 1049/2001, which includes the public interest as regards international relations[8] and the financial, monetary or economic policy of the European Union or a Member State.[9] There must, however, be a reasonably foreseeable and not purely hypothetical risk that disclosure would undermine these interests.

My inquiry team’s review of the documents showed that some redacted parts of document 1 contain information that is already publicly available.[10] The same applies for parts of document 2, which contain public information on national legislation, statistics, and general information about the national organisations involved in child adoption.

The inspection also revealed that some redacted parts of document 1 relate to the estimated overall cost of the project, the EU’s contribution and general information about conditions to declare costs eligible.[11] It is not readily clear how these parts of the document could constitute ‘sensitive information about the Member States’ and how their disclosure would undermine the protection of the public interest as regards international relations.[12] It is also unclear how information concerning the beneficiary’s obligation to publish information on grants would affect international relations, as this information should eventually be published.[13]

As regards the remaining parts of document 1, they do not seem to contain information the disclosure of which would undermine the protection of the public interest as regards international relations and/or the financial, monetary or economic policy of the European Union or a Member State. The same seems to apply for document 2. In addition, an ongoing decision-making process is not in itself sufficient to demonstrate that disclosure of the relevant documents would seriously undermine it.[14]

In light of the above, I have decided to propose as a solution that the Commission reconsider its position on the complainant’s public access request, taking into account my above observations, with a view to granting the widest possible access to the documents requested.

I would also like to remind the Commission that Articles 7 and 8 of Regulation 1049/2001 provide, as stated in recital 13 thereof, for a two-stage procedure for access to documents. While the reply to an initial application for access to documents is merely an initial statement of position, a confirmatory reply allows the EU institution concerned to reconsider its initial position before taking a final refusal decision, which could be then the subject of an action before the Courts of the European Union or to a complaint before the European Ombudsman.

Regrettably, in this case, I had to base my assessment on an incomplete file, as the Commission has not adopted an explicit reply at the confirmatory stage. In this regard, I would like to recall that, when an EU institution fails to comply with the time limits laid down in Article 8 of Regulation 1049/2001, it nevertheless remains under an obligation to provide - even late - a reasoned reply to the application for access[15].

I would further recall that 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. These obligations are also reflected in the European Code of Good Administrative Behaviour[16].

I would be grateful to receive the Commission’s reply to my proposal by 7 July 2026. Given the delay already incurred in this case and the time sensitivity of the matter, I would however urge the Commission to reply to this proposal as soon as possible.

At this stage, the solution proposal is confidential. My inquiry team has, however, informed the complainant of our intention to seek a solution in this case.[17] Please note that my Office’s usual practice is to send a copy of the solution proposal to the complainant for comments, together with a copy of the institution’s reply to it, once we have received that reply. I would therefore ask the Commission to inform us if any information contained in the solution proposal, or in its reply, should not be shared with the complainant.[18]

Yours sincerely,

Teresa Anjinho
European Ombudsman

Strasbourg, 07/05/2026

 

[1] Ares(2024)8430257

[2] Ares(2025)5695526

[3] Third indent of Article (4)(1)(a) of Regulation 1049/2001

[4] Fourth indent of Article (4)(1)(a) of Regulation 1049/2001

[5] First subparagraph of Article 4(3) of Regulation 1049/2001

[6] First indent of Article 4(2) of Regulation 1049/2001

[7] Article (4)(1)(b) of Regulation 1049/2001

[8] Judgment of the General Court of 3 July 2024 in case C-350/12 P, Council v in `t Veld, paragraph 63

[9] Judgment of the General Court of 26 April 2018 in case T-251/15, Espírito Santo Financial v European Central Bank, paragraph 91

[10] Such as Document 1: Annex I, Part I and Part II section 2 (‘sustainability’)

[11] Article 3 and 4 of the Contribution Agreement

[12] Third indent of Article (4)(1)(a) of Regulation 1049/2001

[13] See Article 7(1)(2) of the Contribution Agreement

[14] Judgment of the Court of 13 July 2017, Saint-Gobain Glass Deutschland v Commission, C-60/15 P, paragraph 82

[15] See, to that effect, judgment of 14 July 2016, Sea Handling v Commission, C-271/15 P, EU:C:2016:557, paragraphs 85 to 87.

[16] https://www.ombudsman.europa.eu/en/publication/en/3510

[17] In line with Article 2(10) of the Statute of the European Ombudsman, Regulation 2021/1163 of 24 June 2021 laying down the regulations and general conditions governing the performance of the Ombudsman’s duties: https://www.ombudsman.europa.eu/en/legal-basis/statute/en

[18] 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 e-mails can be sent to our dedicated mailbox. Information and documents of this kind will be deleted from the European Ombudsman’s file shortly after the inquiry has ended.