REPORT FROM THE COMMISSION on the application in 2020 of Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents
Date: 2021-11-09
Institutions: European Commission, Secretariat-General
Subjects: Council of the European Union, European Commission, European Parliament, access to EU information, application of EU law, right to information

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 9.11.2021  COM(2021) 459 final/2   CORRIGENDUM  This document corrects document COM(2021) 459 final of 09.08.2021.  Concerns all language versions.  Correction of small errors in footnote 2 and points 4.1 and 4.2.2.  The text shall read as follows: REPORT FROM THE COMMISSION on the application in 2020 of Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents              
 
 
Table of Contents 

I. 

1. 

2. 

3. 

3.1. 

3.2. 

3.3. 

3.4. 

4. 

4.1. 

4.2. 

Access to documents .................................................................................................... 3 

Making information and documents available through Registers and Internet Sites ... 5 

Legal framework—developments ................................................................................ 8 

Analysis of the applications for access to documents .................................................. 9 

The number of applications (see Annex – Tables 3 and 4) .......................................... 9 

Proportion of applications per European Commission Directorate-General/Service 
(see Annex – Table 5) ................................................................................................ 11 

Social and occupational profile of applicants (Annex – Table 6) .............................. 14 

The geographical origin of applicants (Annex – Table 7) ......................................... 16 

Application of Exceptions to the Right of Access ..................................................... 18 

Types of access provided (Annex – Tables 8 and 9) ................................................. 18 

Invoked exceptions to the right of access (Annex – Table 10) .................................. 20 

4.2.1. 

Initial stage ................................................................................................................. 20 

4.2.2.  Confirmatory stage ..................................................................................................... 21 

5. 

6. 

Complaints to the European Ombudsman.................................................................. 23 

New Case Law on Access to Documents ................................................................... 23 

6.1. 

The Court of Justice ................................................................................................... 23 

6.1.1.  Clarifications of some substantive rules .................................................................... 24 

6.1.2.  Clarifications of some procedural rules ..................................................................... 24 

6.2. 

The General Court ...................................................................................................... 24 

6.2.1.  Clarifications of some substantive rules .................................................................... 25 

6.2.2.  Clarifications of some procedural rules ..................................................................... 28 

6.3. 

Court cases introduced against the European Commission in 2020 .......................... 29 

1 

 
 
 
 
 
 
Transparency  is  one  of  the  priorities  of  the  von  der  Leyen  Commission  that  underpins  all 
actions.  One of its  essential  elements  is  the right  to  request  and obtain access  to  documents 
held by European institutions. 

This citizen’s right stems from the democratic, open and independent nature of the European 
administration. Its principles are enshrined in Article 42 of the Charter of Fundamental Rights 
of  the  European  Union  and  Article  15(3)  of  the  Treaty  on  the  Functioning  of  the  European 
Union. Regulation (EC) No 1049/2001 and case law of the Court of Justice give full effect to 
them and play a central role in ensuring that decisions of Institutions are taken as openly and 
as closely to the citizen as possible.  

Faced with the challenges of the pandemic in 2020, the Commission strived to safeguard the 
effectiveness  of  citizens’  right  of  access  to  documents  held  by  the  institutions.  The  present 
annual  report,  drafted  in  accordance  with  Article  17(1)  of  Regulation  (EC)  No  1049/2001, 
identifies the key trends, challenges and  features  of Commission  policy, action and practice 
related  to  access  to  documents.  It  also  provides  the  findings  of  the  European  Ombudsman 
concerning  the  European  Commission's  implementation  of  the  Regulation  and  the  rulings 
handed down by the EU Courts. 

2 

 
 
 
 
I.  Access to documents 

In  2020,  the  European  Commission  provided  access  to  a  wide  range  of  documents  in  its 
possession,  following  specific  requests  submitted  under  the  Regulation.  This  access 
complemented  the  institution’s  proactive  publication  of  a  wealth  of  information  and 
documentation  on  its  various  registers  and  webpages.  The  year  2020  was  an  unprecedented 
one for the European Commission. In the context of the COVID-19 pandemic, in line with the 
drastic containment measures adopted by the Member States1, the European Commission put 
in  2020  almost  its  entire  staff,  except  for  staff  members  performing  critical/essential  tasks, 
into telework mode until further notice. 

This  report  provides  an  overview  of  the  European  Commission’s  implementation  of  the 
Regulation in the year 2020. It is based on statistical data, which are summarised in Annex2.  

The statistics reflect the number of applications received and replies provided in 2020. They 
further  provide  more  accurate  data  as  regards  the  statistics  retrieved  for  the  previous  years, 
following subsequent regular encoding corrections3. However, the statistics do not reflect the 
number  of  documents  requested  or  (partially)  disclosed,  which  were  far  more  numerous. 
Although  applicants  may  ask  for  access  to  a  single  document,  they  more  frequently  request 
access  to  a  multitude  of  documents,  or  even  to  entire  files  concerning  a  specific  subject  or 
procedure.  

In brief, the statistics show that the requested documents were fully or partially disclosed in 
almost 81% of the 8,001 cases at the initial stage, and wider or even full access was granted in 
37.4%  of  the  265  cases  reviewed  at  the  confirmatory  stage.  The  data  not  only  confirm  the 
openness of the European Commission, but also the commitment of the institution to the right 
of  access  to  documents  as  part  of  its  overall  transparency  policy,  in  all  circumstances, 
including in the unprecedented pandemic situation which characterised the year 2020.  

Impact of COVID-19  

The  COVID-19  pandemic  shifted  the  institution’s  focus  to  coordinating  the  Union’s 
immediate response to the pandemic and to developing a comprehensive economic recovery 
plan.  

The  European  Commission  negotiated  with  pharmaceutical  companies  on  behalf  of  the 
Member States of the European Union, leading to the initial signature of six agreements, with 
further exploratory talks with additional vaccine manufacturers concluding in 2020 and early 
2021.  

1 In Belgium, the Government requested that organisations such as the European  Commission implement strict 
teleworking  policies,  see  ‘Arrêté  ministériel  portant  des  mesures  d’urgence  pour  limiter  la  propagation  du 
coronavirus 
updated): 
http://www.ejustice.just.fgov.be/cgi_loi/change_lg.pl?language=fr&la=F&table_name=loi&cn=2020102801. 
2 Unless  otherwise  indicated,  the  statistics  presented  in  this  Report  are  based  on  figures  extracted  from  the 
European  Commission  IT applications  on  31  December  2020,  as  updated  following  subsequent  encoding 
corrections. Percentages in the narrative part of the Report are rounded to the closest decimal. 

(subsequently 

COVID-19’ 

October 

2020 

28 

of 

3 For this reason, the figures provided in this report and the previous ones may slightly differ. 

3 

 
 
                                                           
In  parallel,  the  European  Commission  took  a  series  of  actions  to  tackle  COVID-19 
disinformation and urged all actors, including online marketplaces and social media, to help in 
this fight4. 

In the framework of this unprecedented pandemic situation, the European Commission abided 
by its guiding principles for its functioning, namely: transparency, collegiality and efficiency5.  

The  European  Commission  strived  to  create  the  environment  required  to  support  a  secure 
manufacturing  network  and  optimisation  for  the  production  of  vaccines  against  COVID-19. 
For this purpose, the European Commission agreed with all Member States of the European 
Union  to  conclude,  on  behalf  and  in  the  name  of  the  Member  States,  Advance  Purchase 
Agreements  with  vaccine  manufacturers  with  the  objective  of  procuring  vaccines  for  the 
purposes  of  combatting  the  COVID-19  pandemic  at  Union  level,  for  everyone,  in  safe 
conditions and at a fair price. 

In an effort to ensure as complete as possible transparency of the process for the purchase of 
COVID-19  vaccines,  the  European  Commission  strived  to  publish  timely  information  about 
the  signature  of  the  contracts  and  the  state  of  play  of  the  negotiations  with  vaccine 
manufacturers.  Against  this  background,  the  Commission  engaged  in  consultations  with 
vaccines  manufacturers  involved  in  that  process  about  the  possibility  to  disclose  contracts 
concerning such purchase.  

As  a  result,  redacted  versions  of  agreements  for  the  purchase  of  COVID-19  vaccines  have 
been progressively published on a proactive basis.  

Yet, the objective of procuring COVID-19 vaccines from commercial manufacturers requires 
that  some  legitimate  interests  that  could  be  undermined  by  the  disclosure  of  documents  are 
duly protected, in particular sensitive business information or the capacity of the Commission 
to negotiate with the commercial manufacturers a diverse portfolio of contracts. 

Resources 

In the European Commission, the treatment of initial access to documents requests is handled 
on a decentralised basis by the various Commission Directorates-General and services. Each 
Directorate-General  and  service  appoints  at  least  one  legal  expert  for  this  task,  acting  as 
‘access to documents coordinator’.  

Depending  on  the  size  of  the  service  and  the  number  of  requests  received,  ‘access  to 
documents coordinators’ are usually assisted by some support staff and are entrusted with the 
coordination of the draft replies with the units in charge of the underlying policy areas. 

Confirmatory requests are dealt with by the Secretariat-General. 

4 Tackling coronavirus disinformation | European Commission (europa.eu). 
5 See Communication from the President to the Commission of 1 December 2019, ‘The Working Methods of the 
European Commission’, P(2019) 2, available at: https://ec.europa.eu/info/sites/info/files/working-methods.pdf.  

4 

 
 
                                                           
A  specific  team  within  the  Secretariat-General’s  Unit  for  Transparency,  Document 
Management and Access to Documents deals with confirmatory requests, so as to ensure an 
independent administrative review of the reply given at the initial stage. In addition, the Unit 
provides horizontal guidance, training and advice to all Directorates-General and services of 
the European Commission on the implementation of the Regulation, in close cooperation with 
the Legal Service, ensuring the coordination and uniform implementation of the detailed rules 
for the application of Regulation (EC) No 1049/2001.  

The  Unit  also  manages  the  European  Commission-wide  IT  system  for  handling  initial  and 
confirmatory requests for access to documents: Gestdem. In 2020, the Commission continued 
to develop further its future system for handling access requests through an electronic online 
portal, namely ‘Electronic AccesS to European Commission Documents’ (or ‘EASE’).  

The EASE project aims to create a one-stop-shop, electronic and fully integrated IT solution 
for  submitting  and  handling  applications  for  access  to  Commission  documents.  Its  ultimate 
goal is bringing the EU decision-making process closer to citizens. EASE is scheduled to go 
into production mid-2021. It consists of two parts, namely: 

(1). a new online portal allowing the citizens to (i) submit and have an overview of their 
applications  for  access  to  Commission  documents,  (ii)  communicate  with  the 
Commission as well as (iii) search for previously disclosed documents; and 

(2). a  new  case-management  system  allowing  the  Commission  staff  to  register,  attribute 
and  handle  the  applications  for  access  to  documents.  It  will  replace  Gestdem,  the 
current IT system used for this purpose. 

In  addition,  in  cooperation  with  the  Directorate-General  for  Informatics,  the  project  team 
continued working in 2020 on the Artificial Intelligence Study, the aim of which is to identify 
‘use cases’ where artificial intelligence techniques could simplify the handling of applications 
for access to documents. 

In conclusion, the new EASE project should provide increased transparency and bring citizens 
closer to the EU decision-making process. 

1. 

MAKING  INFORMATION  AND  DOCUMENTS  AVAILABLE  THROUGH  REGISTERS  AND 
INTERNET SITES 

The  Commission  publishes  a  wide  variety  of  legal,  policy,  administrative  and  other 
documents  on  different  websites  and  registers.  Many  are  available  on  the  Register  of 
Commission  Documents,  Register  of  Delegated  Acts  and  other  corporate  registers  managed 
by the Secretariat-General, while others can be found on websites managed by Directorates-
General or EUR-Lex.  

5 

 
 
In 2020, 19,849 new documents were added to the Register of Commission Documents (see 
Annex – Table 1), falling within the C, COM, JOIN, OJ, PV, SEC or SWD categories6. This 
represents approximately an 8.2% increase compared to 2019. 

The  ongoing  project  ‘Revamp  of  the  Register  of  Commission  Documents’  which  aims  at 
transforming  the  Register  of  Commission  Documents  into  the  main  publication  tool  of  the 
institution’s documents continued to progress7. 

In 2020, the number of visitors of the ‘Access to Documents’ website on Europa8 more than 
doubled, with 14,716 visitors compared to 6,642 in the previous year. Similarly, the number 
of  pages  viewed  increased  by  almost  141.6%,  with  24,429  pages  viewed  (see  Annex  – 
Table 2)9. 

Both  platforms  remain  useful  search  tools  enabling  citizens  to  participate  more  closely  and 
actively  in  the  European  Commission’s  decision-making  process  as  well  as  promoting  the 
policy on access to documents and broader transparency in general. 

In  2020,  the  European  Commission  continued  to  publish  proactively  a  wide  range  of 
information  and  documents  and  in  a  user-friendly  way.  Simultaneously,  the  institution 
constantly  sought  to  explore  new  tools  designed  to  further  the  transparency  of  its  overall 
activities  and  involve  citizens  in  the  democratic  process.  Notwithstanding  the  COVID-19 
pandemic, the European Commission managed in 2020 to deploy targeted efforts to enhance 
further the transparency of all its core activities.  

A few examples illustrative of this endeavour are listed below. 

Publication of mission expenses of the Members of the Commission 

In  2020,  the  Commission  has  continued  to  publish  on  the  Europa  website  an  overview  of 
mission expenses per Member of the Commission every two months, covering all missions, in 
accordance  with  Article  6  of  the  Code  of  Conduct  for  the  Members  of  the  European 
Commission.  

Such  publication  provides  transparency  both  on  the  costs  and  the  purpose  of  the  respective 
missions.  A  link  towards  the  relevant  information  can  be  found  on  each  Commissioner’s 
respective webpage. 

6  Namely,  C:  Autonomous  acts  of  the  Commission;  COM:  Commission  legislative  proposals  and  other 
documents  communicated  to  other  institutions,  with  their  preparatory  papers;  JOIN:  Commission  and  High 
Representative Joint Acts; OJ: Agendas of Commission meetings; PV: Minutes of Commission meetings; SEC: 
Commission documents that cannot be classified in any of the other series; SWD: Commission staff working 
documents. 

7  At  the  time  of  the  drafting  of  this  Report,  the  updated  version  of  the  Register  became  operational  since 
17 May 2021 and enlarged its scope so that documents available on other places will also be searchable via it. 

8   Access to documents: http://ec.europa.eu/transparency/access_documents/index_en.htm. 
9  Those  data  result  from  the  use  since  2018  of  a  new  algorithm,  which  provides  more  accurate  statistics. 

Therefore, they are not comparable to the ones retrieved for the years prior to 2018. 

6 

 
 
                                                           
Brexit 

The United Kingdom left the European Union on 31 January 2020, following the ratification 
of the Withdrawal Agreement by the EU and the United Kingdom. 

Throughout  the  negotiating  process,  the  Commission,  as  European  Union  negotiator, 
remained  committed  to  ensuring  a  maximum  level  of  transparency.  For  this  reason, 
Commission  negotiating  documents  shared  with  EU  Member  States,  the  European  Council, 
the  European  Parliament,  the  Council,  national  parliaments,  and  the  United  Kingdom,  were 
regularly  released  to  the  public,  together  with  other  documents  informing  the  public  of  the 
state of play of the negotiations and the issues discussed10. 

Trade policy 

Trade  policy  affects  all  EU  citizens.  Therefore,  the  European  Commission  listens  to  input 
from Union citizens so that EU policy accurately reflects our society’s values and interests as 
a  whole.  Accordingly,  this  policy  is  built  with  EU  citizens’  input,  which  is  made  before, 
during and after the negotiation process. 

In 2020, transparency and engagement with the public remained essential features within the 
trade policy in order to ensure democracy, public trust and accountability. Information on 84 
meetings of committees and dialogues set up in the framework of its trade agreements were 
published  in  2020,  together  with  34  negotiation  round  reports;  and  information  on  16 
meetings of Expert Groups11.  

Moreover,  for  the  first  time,  11  Commission  decisions  on  Member  States’  Bilateral 
Investment  Treaties,  and  a  non-sensitive  summary  record  of  a  Trade  Defence  Instruments 
committee were published. In addition, 17 Civil Society Dialogue meetings were organised to 
update on ongoing individual negotiations, or to discuss draft reports of SIAs and the overall 
trade agenda12. 

These measures build on the pro-active transparent approach to trade policy already pursued 
by the European Commission.  

The  above-mentioned  examples  of  proactive  publication  constitute  only  a  few  instances 
illustrative of the institution’s efforts to boost transparency within the broader meaning of the 
term13. 

10 https://wayback.archive-it.org/11980/20201223015019/https://ec.europa.eu/info/european-union-and-united-

kingdom-forging-new-partnership/publications-and-news/documents-related-work-task-force-relations-united-
kingdom_en 

11 https://trade.ec.europa.eu/doclib/docs/2021/february/tradoc_159448.pdf.  
12 Ibid. 
13 In  addition,  the  Institution  ensures  the  transparency  of  (i)  the  Commission  Members’  contacts  with 
see  

stakeholders 
https://ec.europa.eu/transparencyregister/public/staticPage/displayStaticPage.do?locale=en&reference=ANNUAL_REPORT); 
(ii)  post  term  of  office  occupations  of  the  former  Members  of  the  Commission.  Moreover,  the  European 
Commission  publishes  annual  reports  on  the  application  of  the  Code  of  Conduct  for  the  Members  of  the 
at: 
European 

information, 

Commission 

available 

society. 

second 

annual 

report 

more 

civil 

(For 

(the 

and 

is 

7 

 
 
                                                           
2. 

LEGAL FRAMEWORK—DEVELOPMENTS 

There  are  currently  two  pending  proposals  for  amending  Regulation (EC) No 1049/2001, 
namely: 

 

 

the  2008  Proposal  for  a  Regulation  of  the  European  Parliament  and  of  the  Council  
amending  Regulation (EC) No 1049/2001  regarding  public  access  to  European 
Parliament,  Council  and  Commission  documents,  COM(2008)229  final  2008/0090 
(COD)14; and 

the  2011  Proposal  for  a  Regulation  of  the  European  Parliament  and  of  the  Council 
amending  Regulation (EC) No 1049/2001  regarding  public  access  to  European 
Parliament,  Council 
final 
2011/0073(COD)15. 

documents,  COM(2011)137 

and  Commission 

The first proposal of 2008, also known as the ‘Recast proposal’ as it consisted in a substantial 
recast of the Regulation, was introduced by the Commission on 30 April 2008 following its 
‘European Transparency Initiative’. This initiative, which was launched on 9 November 2005, 
included indeed a review of Regulation (EC) No 1049/2001 as part of the Commission’s drive 
to create more openness.  

The aim of the Recast Proposal is to: 

  achieve more transparency in the legislative area;  

  align the Regulation with the provisions on access to environmental information laid 

down in Regulation (EC) No 1367/2006;  

  reflect the views of the European Parliament as set in its Resolution of 4 April 2006 
(whereby  the  European  Parliament  had  called  on  the  Commission  to  come  forward 
with  some  proposals  for  amending  the  Regulation  on  some  specific  points)  and  the 

https://ec.europa.eu/info/sites/default/files/sec2020344_en.pdf); and fosters a ‘better regulation’ system which 
is  acknowledged  as  one  of  the  most  advanced  regulatory  approaches  in  the  world  (See  OECD  Regulatory 
Policy  Outlook  2018  (OECD  Publishing,  Paris).  In  early  2020,  the  institution  pursued  its  exercise  of  taking 
stock  of  the  ‘Better  Regulation’  Agenda  of  2015,  so  as  to  assess  both  its  positive  aspects  and  areas  for 
improvement. The work was concluded by the adoption of the Better Regulation Communication on 28 Avril 
2021  (see  better_regulation_joining_forces_to_make_better_laws_en_0.pdf  (europa.eu).  Furthermore,  the 
European  Commission  continued,  notwithstanding  the  COVID-19  pandemic,  to  implement  via  various 
initiatives and actions, its ‘Europe for citizens’ programme’ which was set for the period 2014-2020 and was 
designed to encourage EU citizens to be better informed, take part in the debate and play a stronger role in the 
(See  https://ec.europa.eu/info/departments/justice-and-consumers/justice-and-
development  of 
consumers-funding-tenders/funding-programmes/europe-citizens-efc-0_en#documents).  Finally, 
this 
unprecedented  context  of  COVID-19  pandemic,  the  European  Commission  adopted  on  19  May  2020  a 
proposal  for  a  regulation  extending  the  time  limits  for  the  collection,  verification  and  examination  phases 
applicable  to  European  Citizens’  initiatives.  The  final  text  of  this  Regulation  was  adopted  by  the  European 
Parliament and the Council on 15 July 2020 (See Regulation (EU) 2020/1042 of the European Parliament and 
of the Council of 15 July 2020 laying down temporary measures concerning the time limits for the collection, 
the  verification  and  the  examination  stages  provided  for  in  Regulation  (EU)  2019/788  on  the  European 
citizens’ initiative in view of the COVID-19 outbreak, OJ L 231, 17.7.2020, p. 7–11).  
14 See https://ec.europa.eu/transparency/regdoc/rep/1/2008/EN/1-2008-229-EN-F1-1.Pdf. 
15 See https://www.europarl.europa.eu/meetdocs/2009_2014/documents/com/com_com(2011)0137_/com_com(2011)0137_en.pdf. 

the  EU. 

in 

8 

 
 
                                                                                                                                                                                     
results of the public consultation exercise launched by the Commission’s Green Paper; 
as well as, 

 

incorporate the clarifications provided by the case-law of the Court of Justice and the 
European Ombudsman’s practice. 

second  proposal 

submitted  on  21  March  2011,  aimed  at 

The 
‘Lisbonising’ 
Regulation (EC) No 1049/2001, namely by extending the right of public access to documents 
of all institutions, bodies, offices and agencies in order to align the Regulation with the new 
Article 15(3) of the Treaty on the Functioning of the European Union. This proposal was not 
intended to prejudice the ongoing procedure for a recast of Regulation (EC) No 1049/2001 on 
the basis of the 2008 Commission’s proposal, which it left intact. 

On  29  January  2020,  following  the  European  Parliament’s  request  in  the  framework  of  the 
decision of the Conference of Presidents on 16 October 2019, the Commission proposed the 
withdrawal of both proposals in its ‘Work Programme 2020’16.  

The  latter  was  transmitted  to  the  Council  and  the  European  Parliament  for  consultation  in 
accordance  with  point  9  of  the  Interinstitutional  Agreement  on  Better  Law-making.  As  the 
European  Parliament  opposed  the  withdrawal  of  the  proposals,  the  Commission  agreed,  by 
letter of 14 September 2020, not to withdraw them and to support further political discussion.  

As  such,  the  withdrawal  act  corresponding  to  annex  IV  of  the  2020  Commission  Work 
Programme,  which  contains  the  final  list  of  withdrawn  proposals,  was  published  on 
to 
2020  without 
29 September 
Regulation (EC) No 1049/200117. 

proposals 

including 

related 

two 

the 

political 

discussions.  Nevertheless, 

Consequently, both proposals are still pending and remain the basis for any further legislative 
and 
that 
Regulation (EC) No 1049/2001 as construed per the case-law of the European Court of Justice 
continues to provide a an appropriate and efficient legal framework for ensuring public access 
to documents. 

Commission 

considers 

the 

3. 

ANALYSIS OF THE APPLICATIONS FOR ACCESS TO DOCUMENTS 

3.1.  The number of applications (see Annex – Tables 3 and 4) 

 

Initial applications 

16 See No.31 of Annex IV of the Communication from the Commission to the European Parliament, the Council, 
the  European  Economic  and  Social  Committee  and  the  Committee  of  the  Regions,  Commission  Work 
Programme 2020, A Union that strives for more, COM(2020) 37 final, 29 January 2020, available at: https://eur-
lex.europa.eu/resource.html?uri=cellar%3A7ae642ea-4340-11ea-b81b-01aa75ed71a1.0002.02/DOC_2&format=PDF 

17 https://eur-lex.europa.eu/legal-content/FR/TXT/?uri=uriserv:OJ.C_.2020.321.01.0037.01.FRA&toc=OJ:C:2020:321:TOC 

9 

 
 
                                                           
As illustrated by the graph below, in 2020, the number of initial applications reached 8,00118. 
This figure reflects a striking increase of almost 7.5% in comparison with 201919.  

The  European  Commission  issued  9,181  initial  replies  in  comparison  with  8,449  in  2019, 
showing a rise of almost 8.7%.  

those 

Amongst 
of 
Regulation (EC) No 1049/2001  (compared  to  7,612  in  2019)20.  This  number  illustrates  an 
increase of around 7.25% in one year.  

8,164  were 

replies, 

issued 

initial 

basis 

the 

on 

The  number  of  ‘replies  given’,  as  extracted  from  the  database,  encompasses  all  types  of 
follow-up provided by the European Commission, extending from: 

  replies provided under Regulation (EC) No 1049/2001 (including where no documents 

are held); to 

  responses  provided  under  different  legal  frameworks  (due  to  the  contents  of  the 

application or status of the applicant21, etc.); or even  

  closures following the applicants’ failure to provide requested clarifications or to fulfil 

procedural requirements.  

INITIAL APPLICATIONS 2020

9
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.

7
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5
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.

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.

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8

.

2 0 1 6

2 0 1 7

2 0 1 8

2 0 1 9

2 0 2 0

Applications registered

Replies given

Regulation 1049/2001 replies

18 It is noteworthy that a single request can concern several documents and can consequently give rise to several 
different replies. On the other hand, several requests can be grouped together in some cases and give rise to 
one single reply. 

19 In 2019, the number of initial applications amounted to 7,445. 
20 Depending  on  the  contents  of  the  requests  or  the  status  of  the  applicants,  the  remaining  replies  resulted  in 
responses  handled  in  accordance  with  other  legal  frameworks  (such  as  the  Code  of  Good  Administrative 
Behaviour or the principle of sincere cooperation, etc.). 

21 For  instance,  replies  provided  under  the  principle  of  sincere  cooperation  with  Member  States  or  other 

institutions; or replies on the basis of the Code of Good Administrative Behaviour, etc. 

10 

 
 
 
                                                           
  Confirmatory applications 

As  regards  confirmatory  applications  requesting  a  review  by  the  European  Commission  of 
initial  replies  fully  or  partially  refusing  access,  their  number  amounted  to  309  in  2020, 
reflecting  a  decrease  of  almost  7.5%  in  comparison  with  2019.  This  is  the  first  time  that  a 
decrease in the number of confirmatory applications can be observed since 2015.  

The  European  Commission  issued  298  replies,  amongst  which  265  were  based  on 
Regulation (EC) No 1049/2001.  This  last  number  reflects  a  decrease  of  almost  10.5% 
compared to 2019 as illustrated by the graph below. 

CONFIRMATORY APPLICATIONS  2020

5
9
2

8
5
2

0
2
2

9
9
2

0
0
3

9
5
2

6
2
3

8
1
3

8
8
2

4
3
3

9
1
3

6
9
2

9
0
3

8
9
2

5
6
2

2 0 1 6

2 0 1 7

2 0 1 8

2 0 1 9

2 0 2 0

Applications registered

Replies given

Regulation 1049/2001 replies

3.2.  Proportion  of  applications  per  European  Commission  Directorate-General/Service 

(see Annex – Table 5)  

  Access  to  documents  of  the  European  Anti-Fraud  Office  and  European  External 

Action Service 

It  is  noteworthy  that  the  data  pertaining  to  the  European  Anti-Fraud  Office  (‘OLAF’) 
indicated  below,  concern  exclusively  applications  for  access  to  documents  related  to  its 
administrative activities, which are recorded in Gestdem.  

Applications  for  access  to  documents  concerning  the  European  Anti-Fraud  Office’ 
investigative activities, due to the particular sensitivity of the latter, are subject to a specific 
procedure in accordance with Article 3(3) and Article 4 of the Detailed rules for application 
of Regulation (EC) No 1049/2001 of the European Parliament and of the Council regarding 
public access to European Parliament, Council and Commission documents22. 

22 Commission Decision of 5 December 2001 amending its rules of procedure, OJ L 345, 29.12.2001, p.94. 

11 

 
 
 
                                                           
In  2020,  the  European  Anti-Fraud  Office  received  16  initial  and  three  confirmatory 
applications in relation to its investigative activities, which are therefore not covered by this 
report.  

Moreover, as regards the European External  Action  Service (‘EEAS’), it should be stressed 
that  only  documents  of  the  Service  for  Foreign  Policy  Instruments  are  retained  with  the 
European Commission. Therefore, the data pertaining to European External Action Service in 
this report concern only applications for access to such documents. 

 

Initial applications 

In  2020,  the  Secretariat-General23  received  the  highest  proportion  of  initial  applications 
(10.2%).  

It  was  closely  followed  by  the  Directorate-General  for  Health  and  Food  Safety24,  which 
accounted  for almost  7.7% of the initial  applications. This  figure illustrates the steady  great 
interest of the applicants in health-related matters, which prevailed even before the Covid-19 
pandemic25.  

It was followed by the Directorate-General for International Cooperation and Development26 
(7.3%), the Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs27 
(7.1%),  the  Directorate-General  for  Competition28  (6.2%),  the  Directorate-General  for 
Migration  and  Home  Affairs29(4.8%),  the  Directorate-General  for  Taxation  and  Customs 
Union30  (4.7%)  the  Directorate-General  for  Mobility  and  Transport31  (4.5%),  and  the 
Directorate-General for Financial Stability, Financial Services and Capital Markets Union32 
(4%). 

The remaining European Commission departments and services each accounted for less than 
4% of all initial applications. 

23 Referred to as ‘SG’ in the graphs below. 
24 Referred to as ‘SANTE’ in the graphs below. 
25 See  the  previous  Annual  Reports,  available  at:  https://ec.europa.eu/info/publications/reports-public-access-

european-parliament-council-and-commission-documents_en. 

26 Referred to as ‘DEVCO’ in the graphs below. 
27 Referred to as ‘GROW’ in the graphs below. 
28 Referred to as ‘COMP’ in the graphs below. 
29 Referred to as ‘HOME’ in the graphs below. 
30 Referred to as ‘TAXUD’ in the graphs below. 
31 Referred to as ‘MOVE’ in the graphs below. 
32 Referred to as ‘FISMA’ in the graphs below. 

12 

 
 
                                                           
INITIAL APPLICATIONS 2020

%
2

,

0
1

%
7
2

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%
8
2

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0
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0

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  Confirmatory applications 

The  highest  proportion  of  confirmatory  applications  received  in  2020  by  the  Secretariat-
General  originated from  initial  replies provided by  the  Directorate-General  for  Competition 
(15.2%).  

The latter was followed by the Directorate-General for Health and Food Safety (8.7%), the 
Directorate-General  for  Energy33  (8.1%),  the  Secretariat-General  (7.8%),  the  Directorate-
General 
for  Internal  Market,  Industry, 
the  Directorate-General 
Entrepreneurship  and  SMEs  (4.9%)  and  the  Legal  Service34  (4.5%).  The  initial  replies 
provided  by  the  remaining  European  Commission  departments  and  services  accounted  each 
for less than 4% of requests for a confirmatory review. 

for  Trade  (5.2%), 

33 Referred to as ‘ENER’ in the graphs above and below. 
34 Referred to as ‘SJ’ in the graphs above and below. 

13 

 
 
 
                                                           
CONFIRMATORY APPLICATIONS 2020

%
2

,

5
1

%
1
8

,

%
9
4

,

%
9
2

,

%
2
3

,

%
0
1

,

%
0
1

,

%
0
0

,

%
3
0

,

%
3
0

,

%
0
0

,

%
7
0

,

%
6
3

,

%
9
3

,

%
6
1

,

%
0
1

,

%
7
0

,

,

%
6
% 1
0
1

,

%
3
1

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%
0
1

,

%
7
0

,

%
7
0

,

%
3
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,

%
8
7

,

%
5
4

,

%
7
0

,

M
M
O
C

G
S

J
S

%
7
8

,

%
2
5

,

%
9
3

,

%
6
3

,

%
2
3

,

%
0
0

,

C
A
E

%
3
2

,

%
6
1

,

%
0
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,

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7
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3
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0
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% 0
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3.3.  Social and occupational profile of applicants (Annex – Table 6) 

indicate  on 

Applicants  may 
their 
the  application  form  of 
social/occupational  profile  by  selecting  one  of  the  nine  following  categories:  citizen, 
academic,  lawyer,  journalist,  non-governmental  organisation,  company,  Member  of  the 
European Parliament, subnational or Member State authorities35.  

the  Europa  Website, 

For  statistical  purposes,  the  profile  of  ‘citizens’  covers  the  applicants  who  indicated  their 
profile  as  such,  and  constitutes  the  default  option  covering  those  who  did  not  select  any 
social/occupational category. 

 

Initial applications 

In  2020,  most  initial  applications  originated,  as  in  the  previous  years  from  citizens.  This 
category of applicant submitted indeed approximately 51.3% of the requests.  

35 The latter is a new category introduced in 2018, in order to reflect the fact that national authorities of Member 
States  are  entitled  to  submit  applications  for  access  to  documents  in  the  framework  of  Regulation 
(EC) No 1049/2001. 

14 

 
 
 
                                                           
The  second  place  amongst  the  most  prolific  applicants,  which  was  occupied  by  academic 
institutions  and  think  tanks  in  2019,  was  in  2020  regained  by  companies  (as  in  2018)  who 
accounted for 11.7% of the initial applications. Nevertheless, academic institutions and think 
tanks  closely  followed  with  approximately  10.7%  of  the  initial  applications.  Legal 
professionals  and  journalists  (with  respectively  8.9%  and  7.9%)  continue  to  remain  major 
applicants,  as  in  the  previous  years.  Non-governmental  organisations  (with  almost  6%) 
represent the only remaining category of applicants accounting for more than 5% of the initial 
applications. They were  followed by some distance by the remaining categories, accounting 
each for less than 2% of the initial applications. 

INITIAL APPLICATIONS 2020

1,5% 6,0%

0,7%

10,7%

1,3%

8,9%

7,9%

11,7%

Academic institution/Think tank

Not specified (Citizen)

Company/Business association

Journalist

Law firm/self-employed attorney

MEP/assistant MEP

MS request under Reg.1049/2001

Non-governmental organization
(NGO)
Subnational territorial entity

51,3%

  Confirmatory applications 

Most confirmatory applications in 2020 originated from citizens, who accounted for 39.8% of 
such applications (compared to 51.5% in 2019 and 36.2% in 2018).  

Journalists were in second position, submitting a large number of confirmatory applications, 
accounting for no less than 15.5%.  

The  third  position  is  occupied  by  non-governmental  organisations  who  submitted  14.9%  of 
the confirmatory applications, followed by Legal professionals, accounting for approximately 
12.9% of the confirmatory applications.  

They were followed by some distance by companies (7.1%), Academic institutions and think 
tanks  (6.2%)  and  the  remaining  categories  accounted  each  for  less  than  4%  of  the 
confirmatory applications. 

15 

 
 
 
CONFIRMATORY APPLICATIONS 2020

14,9%

6,2%

0,3%

3,2%

12,9%

15,5%

7,1%

Academic institution/Think tank

Not specified (Citizen)

Company/Business association

Journalist

Law firm/self-employed attorney

39,8%

MEP/assistant MEP

MS request under Reg.1049/2001

Non-governmental organization
(NGO)
Subnational territorial entity

3.4.  The geographical origin of applicants (Annex – Table 7) 

 

Initial applications 

Regarding  the  geographical  breakdown  of  initial  applications  in  2020,  it  appears  that  those 
submitted by applicants from Belgium (30.6%), Germany (11.9%) and France (8.8%) account 
together for over half of the total number of applications received by the Commission. Fourth 
came  Italy with  almost 7.7% of the initial  applications, followed by the Netherlands (5.9%) 
and Spain (5.2%). The applications originating from the remaining Member States accounted 
for less than 2% per Member State.  

A  sharp  decrease  of  the  number  of  applications  from  the  United  Kingdom  is  noted  and 
striking. Indeed, in 2020, less than 0.5% of the initial applications originated from the United 
Kingdom,  compared  to  7.8%  in  2019,  9.2%  in  2018  and  15.2%  in  2017.  The  fact  that  the 
United Kingdom left the European Union on 31 January 2020, following the ratification of the 
Withdrawal Agreement by the EU and the United Kingdom had a clear impact on these data. 

In 2020, the right of access to documents also continued to be exercised by applicants residing 
or  having  their  registered  offices  in  third  countries.  Their  initial  applications  confirmed  the 
slight but steady increase observed in the previous years, accounting for approximately 11.2% 
compared to 6.6% in 2019, 5.3% in 2018 and almost 5% in 2017. 

16 

 
 
 
INITIAL APPLICATIONS 2020

3rd countries
1,9%

Other MSs
18,8%

BE
30,6%

DE
11,9%

European countries 
out of EU
9,4%

NL
5,9%

IT
7,7%

FR
8,8%

ES
5,2%

  Confirmatory applications 

Regarding the geographical breakdown of confirmatory applications, the largest proportion by 
far originated, as  in  the previous  years, from  applicants  residing/established within Belgium 
who represented 27.5% of all applicants, albeit confirming the net decrease already observed 
since 2019.  

The  second  largest  category  of  applicants  originated,  as  in  2019,  from  Germany  (15.5%), 
followed by the Netherlands (8.4%), Spain and Italy (each 6.8%), and France (6.5%). For the 
remaining Member States, this figure did not exceed 4%. 

Finally,  the  number  of  confirmatory  applications  from  applicants  residing  or  having  their 
registered  office  in  third  countries,  who  accounted  for  no  less  than  8.3%,  observed  a  net 
increase (compared to almost 1.5% in 2019, 2.2% in 2018 and 3.6% in 2017).  

17 

 
 
 
CONFIRMATORY APPLICATIONS 2020

3rd countries
0,6%

Other MSs
20,1%

European countries 
out of EU
7,8%

NL
8,4%

IT
6,8%

FR
6,5%

ES
6,8%

BE
27,5%

DE
15,5%

4. 

APPLICATION OF EXCEPTIONS TO THE RIGHT OF ACCESS 

The  right  of  access  provided  in  Regulation (EC) No 1049/2001  is  subject  to  a  number  of 
specific exceptions, which are set forth in Article 4 of the Regulation. Any refusal,  whether 
full or partial, must be justified under at least one of these exceptions. 

4.1.  Types of access provided (Annex – Tables 8 and 9) 

 

Initial stage 

In 2020, full or partial access to documents was granted in 81% of cases at the initial stage 
(showing thereby an increase since 2019, where it reached 77.6%). 

The percentage of fully positive replies noticeably increased from 52.8% in 2019 to 55.7% in 
2020. 

Moreover, the percentage of partially positive replies continued to confirm the steady upward 
trend observed since 2017 (from 20.3% in 2017, to 20.8% in 2018, 24.8% in 2019 and 25.3% 
in 2020).  

18 

 
 
 
In parallel, the steady decrease in the percentage of fully rejected access, observed since 2016, 
continued, accounting for only 10.2% of the total initial applications (against 12.9% in 2019, 
15.8% in 2018; and 18% and 18.7%, in 2017 and 2016 respectively). 

Moreover,  2020  reflected  a  slight  decrease  in  the  number  of  cases  in  which  the  documents 
requested  either  did  not  exist  or  were  not  held  by  the  institution  (8.8%  of  the  initial 
applications, compared to 9.5% of the initial applications in 2019). 

INITIAL STAGE

%
9

,

0
6

%
8

,

1
6

%
4

,

9
5

%
7

,

5
5

%
8

,

2
5

%
4

,

0
2

%
3

,

0
2

%
8

,

0
2

%
8

,

4
2

%
3

,

5
2

%
7

,

8
1

%
0

,

8
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%
8

,

5
1

%
9

,

2
1

%
2

,

0
1

%
5
9

,

%
8
8

,

%
9
3

,

%
0
0

,

%
0
0

,

F U L L   A C C E S S   G R A N T E D

P A R T I A L   A C C E S S

A C C E S S   R E F U S E D

N O   D O C U M E N T S   H E L D

2016

2017

2018

2019

2020

  Confirmatory stage 

In  2020,  49.4%  of  the  initial  replies  challenged  by  confirmatory  applications  were  fully 
confirmed at the confirmatory stage (compared to 30.1% in 2019, 41.7% in 2018 and 52.9% 
in 2017). 37.4% of the initial replies were fully or partially reversed (against 53.4% in 2019). 

CONFIRMATORY STAGE

%
3

,

7
4

%
7

,

1
4

%
0

,

6
4

%
0

,

4
3

%
3

,

4
3

%
9

,

2
5

%
7

,

7
4

%
4

,

9
4

%
7

,

1
4

%
1

,

0
3

%
7

,

7
1

%
6

,

6
1

%
2

,

3
1

%
0
0

,

%
0
0

,

N O   D O C U M E N T S   H E L D

%
0
5

,

%
4
5

,

%
6
6

,

%
4
7

,

%
0
3

,

F U L L   R E V I S I O N   - F U L L  
A C C E S S   G R A N T E D

P A R T I A L   R E V I S I O N   -
P A R T I A L   A C C E S S  
G R A N T E D

C O N F I R M A T I O N   O F  
I N I T I A L   R E P L Y   - A C C E S S  
R E F U S E D

2016

2017

2018

2019

2020

19 

 
 
 
 
4.2. 

Invoked exceptions to the right of access36 (Annex – Table 10) 

4.2.1. 

Initial stage 

In 2020, the protection of privacy and the integrity of the individual37 continued to be, as in 
previous  years,  the  most  frequent  exception  relied  upon  by  the  European  Commission  for 
(fully or partially) refusing access at the initial stage. It was invoked in no less than 44.1% of 
the refusals, compared to 41.1% in 2019 and 34.5% in 2018.  

As  in  previous  years,  a  large  number  of  those  refusals  resulted  from  the  need  to  redact  the 
names of non-senior staff members or third-party representatives appearing in the documents, 
in accordance with the applicable data protection legislation. 

The  second  most  invoked  exception  concerns  the  protection  of  commercial  interests38.  This 
exception was relied upon in 14.2 % of the (partial or full) refusals39.  

The  exception  related  to  the  protection  of  the  purpose  of  inspections,  investigations  and 
audits40 confirmed its place as the third most relied upon exception, accounting for 11.6% of 
the refusals41.  

The  exception  aimed  at  protecting  the  ongoing  decision-making  process42  followed,  with  a 
percentage of use of 9.7%43.  

The relative use of the exception protecting public security44 marked a slight decrease (from 
9.2% in 2019 to 6.4% in 2020).  

Apart  from  the  exception  providing  for  the  protection  of  international  relations45  which 
remaining  exceptions  provided  by 
accounted 
Regulation (EC) No 1049/2001,  were  invoked  by  the  institution  in  less  than  4%  each,  in 
refusing partial or full access to the requested documents at the initial stage. 

for  5.4%  of 

the  cases46, 

the 

36 On the basis of Article 4 of Regulation (EC) No 1049/2001. 
37 This exception is provided under Article 4(1)(b) of Regulation (EC) No 1049/2001. 
38 This exception is provided under the first indent of Article 4(2) of Regulation (EC) No 1049/2001. 
39 Compared to 15% in 2019 and 15.4% in 2018. 
40 This exception is provided under the third indent of Article 4(2) of Regulation (EC) No 1049/2001. 
41 Compared to 13.4 in 2019 and 12.7% in 2018. 
42 This exception is provided under the first subparagraph of Article 4(3) of Regulation (EC) No 1049/2001. 
43 Compared to 10.2% in 2019 and 15.1% in 2018. 
44 This exception is provided under the first indent of Article 4(1) of Regulation (EC) No 1049/2001. 
45 This exception is provided under the third indent of Article 4(1) of Regulation (EC) No 1049/2001. 
46 Compared to 5.3% in 2019. 

20 

 
 
                                                           
INITIAL STAGE 2020

0,4%

2,5%

6,4% 0,2%

9,7%

5,4%

11,6%

3,8%

14,2%

Public security

Defence and military matters

International relations

1,7%

Financial, monetary or economic policy

Privacy and integrity of the individual

Protection of commercial interests

Protection of court proceedings and legal
advice

 Protection for the purpose of inspections,
investigations & audits

44,1%

Decision-making process

Notices for use in internal discussions and
consultations

Objection of a Member State or third party

4.2.2.  Confirmatory stage 

The  protection  of  the  purpose  of  inspections,  investigations  and  audits  continued  to  be  in 
2020, like in the previous years, the most frequently invoked, main ground for confirming a 
(full or partial) refusal of access, accounting for 33% of the cases (compared to 24.3% in 2019 
and 30.6% in 2018).  

The  exception  protecting  privacy  and  the  integrity  of  the  individual  came  second  (26.5% 
compared to 22.2% in 2019 and 25% in 2018).  

The  exception  protecting  the  public  interest  as  regards  commercial  interests  took  the  third 
place in 2020 with 14.4%, breaking thereby the previously steady decrease in its use observed 
from 2016 to 2019 included. 

It  was  followed  by  the  exception  protecting  international  relations,  which  was  invoked  in 
7.8% of the refusals, compared to 18.4% in 2019. 

21 

 
 
 
The exception protecting the  closed decision-making  process of the institution came in  fifth 
position with a percentage of reliance of 5.2%, showing thereby a slight increase compared to 
2019 where it represented only 4.2% of the refusals. 

The  remaining  exceptions  represented  each  less  than  5%  of  the  grounds  for  refusal  at 
confirmatory stage.  

CONFIRMATORY STAGE 2020

 Public security

Defence and military matters

International relations

Financial, monetary or economic policy

Privacy and integrity of the individual

26,5%

Protection of commercial interests

Protection of court proceedings and legal
advice

Protection for the purpose of inspections,
investigations and audits

No decision yet taken - Breach of the
decision-making process

Notices for use in internal discussions and
consultations

5,2%

3,9%

4,8%

7,8%

1,7%

33,0%

2,6%

14,4%

Defence and military matters, 

22 

 
 
 
5. 

COMPLAINTS TO THE EUROPEAN OMBUDSMAN 

In 2020, the European Ombudsman opened 28 new enquiries where access to documents was 
either the main or a subsidiary part of the complaint, compared to 32 in 2019 and 29 in 2018, 
and closed 23 complaints, compared to 42 in 201947.  

Despite  the  fact  that  the  European  Ombudsman’s  recommendations  are  not  legally  binding, 
the Commission  attaches  great  authoritative weight  to  them, in  particular  with  regard to  the 
application of the provisions concerning access to documents. In line with the rules laid down 
in  Regulation (EC) No 1049/2001  and the case law of the Court of Justice, the Commission 
takes steps to align its practice with the recommendations of the European Ombudsman and 
welcomes the positive cooperation with the latter. 

Against  this  background,  in  2020,  in  only  two  of  the  23  closed  cases,  the  European 
Ombudsman found instances of maladministration48. The remaining 21 cases were all closed 
without any remarks or suggestions for improvement from the European Ombudsman49. 

6. 

 NEW CASE LAW ON ACCESS TO DOCUMENTS 

In 2020, the EU Courts further developed, in the framework of various judicial proceedings, 
the  already  considerable  body  of  case  law  concerning  access  to  documents  of  the  EU 
institutions.  This  newly  generated  case  law  confirmed  to  a  large  extent  the  European 
Commission’s  practice  under  Regulation (EC) No 1049/2001  and  will  continue  to  guide  it 
further. 

6.1.  The Court of Justice 

The Court of Justice handed down in 2020 only two judgments on appeal concerning the right 
of  public  access  to  documents  under  Regulation (EC) No 1049/2001,  where  the  European 
Commission was a party to the proceedings, compared to five in 201950. 

In both judgments, the Court of Justice dismissed the appeals. In one of these cases (namely 
case  C-612/18  P),  the  judgment  of  the  General  Court  dismissing  the  action  for  annulment 
introduced against the decision of the Commission was upheld.  

Moreover,  in  both  cases,  the  Court  of  Justice  clarified  issues  extending  from  procedural 
aspects 
of 
to  more 
Regulation (EC) No 1049/2001. 

implementation 

substantive 

arising 

points 

from 

the 

47 The statistics concern the European Ombudsman cases for all European Commission departments except the 

European Anti-Fraud Office. 

48 In case  1050/2018, the European Ombudsman concluded  that the  Commission’s  failure to ask an official to 
identify and retrieve e-mails in the official’s work email in-box, for the purpose of assessment if they can be 
disclosed is maladministration. Another instance of maladministration was identified in case 1794/2019 where 
the Commission refused to provide the complainant with a copy of the requested documents without redacting 
the name of the former head of unit. 

49 The matter was settled in seven of those cases. 
50 Namely: Judgments of 19 March 2020, ClientEarth v European Commission, C-612/18P, EU:C:2020:223; and 
of  30  April  2020,  Izba  Gospodarcza  Producentów  i  Operatorów  Urządzeń  Rozrywkowych  v  European 
Commission, C-560/18P, EU:C:2020:330. 

23 

 
 
                                                           
6.1.1.  Clarifications of some substantive rules 

Of  the  two  judgments  handed  down  by  the  Court  of  Justice  in  2020  in  relation  to  the 
implementation  of  Regulation (EC) No 1049/2001,  one  of  them,  namely  the  ClientEarth  v 
European Commission case51, provided the Court with the opportunity to clarify the scope of 
the exception for the protection of international relations provided under the third indent of 
Article 4(1)(a) of the Regulation.  

The Court of Justice held that certain parts of documents related to the compatibility with EU 
law  of  the  Investor-State  Dispute  Settlement  and  the  Investment  Court  System  in  EU  trade 
agreements, could be withheld by the Commission on the basis of the third indent of Article 
4(1)(a)  of  Regulation (EC) No 1049/2001,  as  they  were  still  under  negotiation  in  the 
framework of the agreement concerned (the Transatlantic Trade Investment Partnership).  

In  the  second  judgment,  namely  in  case  Izba  v  European  Commission,  the  Court  of  Justice 
clarified  that  in  assessing  the  legal  interest  of  applicants  in  the  continuation  of  the 
proceedings, account had to be taken of the fact that the contested decision had been adopted 
on  the  basis  of  the  implementation  of  a  general  presumption  of  confidentiality,  covering 
documents related to an infringement procedure, already accepted by the Court of Justice 52. 

6.1.2.  Clarifications of some procedural rules 

The Court of Justice confirmed that an applicant, whose request for access to documents was 
initially  refused,  could  seek  a  ruling  against  the  institution  concerned  by  the  request  in 
question,  even  though  its  request  had  been  granted  after  it  brought  an  action  before  the  EU 
Courts,  only  when  the  applicant  can  demonstrate  that  the  alleged  unlawfulness  is  likely  to 
recur in the future, irrespective of the particular circumstances of the case53. 

6.2.  The General Court 

In  2020,  the  General  Court  handed  down  ten  judgments54  involving  the  European 
Commission 
under 
right 
to 
in 
Regulation (EC) No 1049/200155. 

documents 

relation 

access 

the 

of 

to 

51 Judgment of 19 March 2020, ClientEarth v European Commission, C-612/18P, op.cit. 
52 Judgment in Izba v European Commission, C-560/18P, op.cit. 49. 
53 Ibid. paragraph 50. 
54 Compared to nine in 2019. 
55 Orders of 14 December 2020, ClientEarth AISBL v European Commission, T-255/20, EU:T:2020:642, of 27 
November  2020,  PL  v  European  Commission,  T-728/19,  EU:T:2020:575;  and  judgments  of  23  September 
2020,  Giorgio  Basaglia  v  European  Commission,  T-727/19,  EU:T:2020:446;  of  25  November  2020,  Marco 
Bronckers v European Commission, T-166/19, EU:T:2020:557; of 28 May 2020, Liam Campbell v European 
Commission, T-701/18, EU:T:2020:224; of 26 March 2020, Laurence Bonnafous v European Commission, T-
646/18,  EU:T:2020:120;  of  6  February  2020,  Compañía  de  Tranvías  de  La  Coruña,  SA  v  European 
Commission,  T-485/18,  EU:T:2020:35;  of  26  March  2020,  ViaSat,  Inc.  v  European  Commission,  T-734/17, 
EU:T:2020:123;  28  May  2020,  ViaSat,  Inc.  v  European  Commission,  T-649/17,  EU:T:2020:235,  and  of  30 
January  2020,  CBA  Spielapparate-  und  Restaurantbetriebs  GmbH  v  European  Commission,  T-168/17, 
EU:T:2020:20. 

24 

 
 
                                                           
Amongst  these  ten  judgments,  six  of  them  rejected  the  actions  of  annulment  against  the 
Commission’s decisions56.  

In another case, it held that there was no need to adjudicate on the action against a negative 
implied decision that had become devoid of purpose by reason of the adoption of an express 
positive confirmatory decision57.  

In three of those judgments,  the General  Court ordered the annulment  of the Commission’s 
decision58. 

In  the  framework  of  this  body  of  case  law  developed  in  2020,  the  General  Court  had  the 
opportunity  to  clarify  issues  extending  from  substantive  points  to  more  procedural  aspects 
arising from the implementation of Regulation (EC) No 1049/2001. 

6.2.1.  Clarifications of some substantive rules 

In 2020, the substantive clarifications issued by the General Court essentially revolved around 
the application of the exceptions below. 

  Exception relating to the protection of international relations 

As regards the concept of international relations underlying the exception provided under the 
third indent of Article 4(1)(a) of Regulation (EC)  No 1049/2001, the General Court held that 
it  encompasses  not  only  the  negotiation  but  also  the  implementation  phases  of  international 
agreements59  and  that  for  documents  originating  from  a  third  country  whose  disclosure  is 
liable  to  undermine  the  interest  protecting  international  relations,  the  third  country’s 
opposition to the disclosure is one of the circumstances which must be taken into account in 
the assessment of the risk to the interest protected60. 

  Exception relating to the protection of commercial interests 

interests  provided  under 

The General Court noted that for the purpose of applying the exception for the protection of 
commercial 
indent  of  Article  4(2)  of 
to  which  commercially  sensitive 
rule  pursuant 
Regulation (EC) No 1049/2001, 
information  of  five  years  old  or  older  must  be  regarded  as  historical,  constitutes  a  useful 
indication61. 

first 

the 

the 

56 Namely, Order PL v European Commission, T-728/19, op.cit.; and judgments Marco Bronckers v European 
Commission, T-166/19, op.cit.; Laurence Bonnafous v European Commission, T-646/18, op.cit.; ViaSat, Inc. v 
European  Commission,  T-734/17,  op.cit.;  ViaSat,  Inc.  v  European  Commission,  T-649/17,  op.cit.;  and  CBA 
Spielapparate- und Restaurantbetriebs GmbH v European Commission, T-168/17, op.cit. 

57 Namely, order in ClientEarth AISBL v European Commission, T-255/20, op.cit. 
58 Namely,  judgments  in  Giorgio  Basaglia  v  European  Commission,  T-727/19  op.cit.;  Liam  Campbell  v 
European  Commission,  T-701/18,  op.cit.;  and  Compañía  de  Tranvías  de  La  Coruña,  SA  v  European 
Commission, T-485/18, op.cit. 

59 Judgment in Marco Bronckers v European Commission, T-166/19, op.cit. Paragraph 70. 
60 Ibid. Paragraph 59. 
61 Judgment in Giorgio Basaglia v European Commission, T-727/19, op.cit. Paragraph 82. 

25 

 
 
                                                           
Nevertheless, it remains open to the institution concerned to demonstrate that that information 
always contains one of the essential elements of the commercial position of the undertaking 
concerned, where appropriate after consultation with the latter in accordance with Article 4(4) 
of that regulation62. The burden of proof in this respect lies with the institution63. 

  Exception relating to the protection of court proceedings 

The General Court stressed that the exception laid down in the second indent of Article 4(2) 
of  Regulation (EC) No 1049/2001,  precludes  the  disclosure  of:  the  content  of  documents 
drawn up solely for the purposes of specific court proceedings, including pleadings or other 
documents lodged during court proceedings, internal documents concerning the investigation 
of the case before the court and correspondence concerning the case between the Directorate-
General  concerned  and  the  legal  service  or  a  lawyers’  office64.  It  also  concerns  documents 
whose disclosure is liable, in the context of specific proceedings, to compromise the principle 
of equality of arms, due to their relevant link at the time of adoption of the decision refusing 
access,  either  with  a  dispute  pending  before  the  Courts  of  the  European  Union,  or  with 
proceedings  pending  before  a  national  court,  which  are  particularly  likely  to  require  a 
reference for a preliminary ruling65. 

  Exception relating to the protection of the purpose of inspections, investigations and 

audits 

The General Court held that a structured and formalised Commission procedure that has the 
purpose  of  collecting  and  analysing  information  in  order  to  enable  the  institution  to  take  a 
position in the context of its functions provided for by the Treaties has to be considered as an 
investigation. This concept may cover Commission activity intended to establish facts in order 
to assess a given situation66.  

Moreover,  in  order  for  a  procedure  to  be  classified  as  an  ‘investigation’,  the  Commission’s 
position in performing its functions is not required to take the form of a decision within the 
meaning of the fourth paragraph of Article 288 TFEU, and, may consist of, inter alia, a report 
or a recommendation67. 

the  concept  of 

Further, 
the  meaning  of  Article  4(2)  of 
Regulation (EC) No 1049/2001 is not restricted to investigative activities conducted by an EU 
institution and encompasses those conducted by  public authorities of Member States for the 
protection of its specific interests68. 

investigations  within 

62 Judgment in Giorgio Basaglia v European Commission, T-727/19, op.cit. ibid. 
63 Judgment in Giorgio Basaglia v European Commission, T-727/19, op.cit. ibid. 
64 Judgment in Compañía de Tranvías de La Coruña, SA v European Commission, T-485/18, op.cit. Paragraph 41. 
65 Judgment in Compañía de Tranvías de La Coruña, SA v European Commission, T-485/18, op.cit. Paragraph 42. 
66   Judgment in ViaSat, Inc. v European Commission, T-649/17, EU:T:2020:235, op.cit. Paragraph 66 
67 Judgment in ViaSat, Inc. v European Commission, T-649/17, EU:T:2020:235, op.cit. Paragraph 67. 
68 Judgment in ViaSat, Inc. v European Commission, T-649/17, EU:T:2020:235, op.cit. Paragraph 70. 

26 

 
 
                                                           
  Concept of overriding public interest 

The  General  Court  took  the  opportunity  to  stress  the  limits  of  the  concept  of  ‘overriding 
public interest’ within the meaning of Article 4 of Regulation (EC) No 1049/2001.  

Pursuant to settled case law, private interests, including the exercise of the applicant’s rights 
of  defence  in  a  trial,  are  irrelevant  for  the  purposes  of  establishing  the  existence  of  an 
overriding public interest within the meaning of Regulation (EC) No 1049/200169.  

Similarly,  general  considerations  pertaining 
to  the  applicant’s  interest  in  obtaining 
compensation for the harm suffered as a result of an infringement of the competition rules are, 
in principle, insufficient to establish an overriding public interest70. Nevertheless, any person 
seeking compensation for damage suffered as a result of an infringement of the competition 
rules  may  establish  the  need  for  him/her  to  have  access  to  any  of  the  documents  in  the 
Commission’s file, so that the institution may, on a case-by-case basis, balance the interests 
justifying  the  disclosure  of  such  documents  and  their  protection,  taking  into  account  all  the 
relevant facts of the case71. 

  General presumption of confidentiality 

Pursuant to settled case law, the EU institutions may base their decisions of non-disclosure of 
requested  documents  on  general  presumptions,  which  apply  to  certain  categories  of 
documents72.  

The General Court held that the Commission is required, in order to apply the presumption in 
relation  to  documents  requested  that  are  part  of  an  EU  Pilot  procedure,  to  identify  in  the 
contested decision the documents covered by the request for access, then to classify them by 
category or as part of a particular administrative file73.  

According  to  the  General  Court,  in  the  absence  of  such  identification,  the  presumption  of 
confidentiality would be irrefutable74 and the Court would not be in the position to exercise its 
power of judicial review as to whether the Commission was justified in taking the view that 
the requested documents were part of an EU Pilot procedure75. 

For the purposes of identifying the relevant documents falling within the scope of a general 
presumption  of  confidentiality,  the  institution  may  however  limit  itself  to  indicating  for 
example: the ‘types or categories of documents [..] identified by its services, or their number 

69   Judgment in Giorgio Basaglia v European Commission, T-727/19, op.cit. Paragraphs 84 to 87. 
70   Judgment in CBA Spielapparate- und Restaurantbetriebs GmbH v European Commission, T-168/17, op.cit. Paragraph 55. 
71   Ibid.  
72   See  inter  alia,  see  judgments  of  27 February  2014,  Commission  v  EnBW,  C-365/12 P,  EU:C:2014:112, 
paragraph 65  and  the  case-law  cited,  of  22 January  2020,  MSD  Animal  Health  Innovation  and  Intervet 
international  v  EMA,  C-178/18 P,  EU:C:2020:24,  paragraph 55  and  the  case-law  cited,  and  of  5 December 
2018, Campbell v Commission, T-312/17, EU:T:2018:876, paragraph 28 and the case-law cited. 

73   Judgment in Liam Campbell v European Commission, T-701/18, op. cit. Paragraph 63. 
74   Judgment in Liam Campbell v European Commission, T-701/18, op. cit. Paragraph 46. 
75   Judgment in Liam Campbell v European Commission, T-701/18, op. cit. Paragraph 66. 

27 

 
 
                                                           
or date’76; or, ‘their nature and the institution or administration which drafted them, without 
disclosing their content’77.  

6.2.2.  Clarifications of some procedural rules 

The main procedural issues addressed in 2020 by the General Court concerned the unilateral 
restriction  of  a  wide-scope  request  and  the  mandatory  nature  of  the  time  limits  of 
Regulation (EC) No 1049/2001. 

  Unilateral restriction of a wide scope request 

According to settled case law, the institutions may, under specific circumstances, unilaterally 
restrict the scope of a wide scope request78.  

The General Court noted in this respect that the nature and content of the documents, and not 
only the number of pages, are relevant79. The mere reference to a number of pages is therefore 
not  sufficient,  as  such,  to  assess  the  workload  required  by  the  specific  and  individual 
examination of the requested documents80.  

Moreover,  an  institution  must  have  genuinely  studied  all  the  other  possible  options  and 
explained  in  detail,  in  its  decision,  the  reasons  why  those  various  options  also  involve  an 
unreasonable workload81.  

The institution relying on the unreasonableness  of the task entailed by the request  bears the 
burden of proof in this respect82.  

A random selection performed by the institution cannot constitute an appropriate basis for the 
identification  of  documents  which  can  be  assessed  in  the  framework  of  the  unilateral 
restriction of the scope of a disproportionate request, even in the absence of any indication on 
the part of the applicant as to a group of documents which might be of particular relevance to 
him83.  For,  such  a  selection  must  result  from  an  objective  assessment  as  to  the  maximum 
amount  of  work  that  the  institution  is  able  to  perform  within  the  time  limits  of  the 
Regulation84. 

Against  this  background,  the  workload  that  may  be  relevant  to  the  assessment  of  the  time 
needed to process an application for access cannot result from an overload linked to the search 
and retrieval of documents in the institution’s archives, but at most from an overload of the 
right to examine those documents85. 

76 Judgment in Liam Campbell v European Commission, T-701/18, op. cit. Paragraph 48. 
77 Judgment in Liam Campbell v European Commission, T-701/18, op. cit. Paragraph 52. 
78 Judgment in Giorgio Basaglia v European Commission, T-727/19, op.cit. Paragraphs 41 et seq. 
79 Judgment in Giorgio Basaglia v European Commission, T-727/19, op.cit. Paragraph 52. 
80 Judgment in Giorgio Basaglia v European Commission, T-727/19, op.cit. ibid. 
81 Judgment in Giorgio Basaglia v European Commission, T-727/19, op.cit. Paragraph 44. 
82 Judgment in Giorgio Basaglia v European Commission, T-727/19, op.cit. Paragraph 43. 
83 Judgment in Giorgio Basaglia v European Commission, T-727/19, op.cit. Ibid.  
84 Judgment in Giorgio Basaglia v European Commission, T-727/19, op.cit. Paragraph 55. 
85 Judgment in Giorgio Basaglia v European Commission, T-727/19, op.cit. Paragraph 54. 

28 

 
 
                                                           
  Mandatory nature of the time limits of the Regulation 

The  General  Court  reiterated  that  the  possibility  of  consultation  provided  for  under  Article 
6(3) of Regulation (EC) No 1049/2001, in order to find a fair solution, can relate only to the 
content or number of documents but not the time limits laid down in Articles 7 and 8 of that 
regulation86.  Therefore,  institutions  cannot  disregard  those  time-limits  in  order  to  respond 
favourably to the applicant’s willingness to receive deferred replies in batches87. 

6.3.  Court cases introduced against the European Commission in 202088 

In 2020, seven cases involving the European Commission were brought before the European 
Courts.  

Six of them concern actions introduced before the General Court89, one of which was already 
closed  during  the  course  of  2020  with  a  decision  concluding  that  there  was  no  need  to 
adjudicate90. 

In parallel, one appeal was introduced before the Court of Justice against a judgment of the 
General Court, in a case where the European Commission was a party to the proceedings91. 

The  European  Commission  attentively  followed  the  above-mentioned  developments  of  the 
case law of the European Courts in 2020.  

Indeed,  seven  out  of  the  12  cases  adjudicated  by  both  the  Court  of  Justice  and  the  General 
Court  in  2020  resulted  in  full  dismissals  of  the  annulment  actions  against  the  European 
Commission’s  decisions92,  and  the  position  of  the  institution  therefore  prevailed.  An 
additional case was moreover concluded without any need to adjudicate93.  

The  European  Commission  also  took  good  note  of  all  above-mentioned  substantive  and 
procedural  clarifications  provided  by  the  European  Courts  in  2020  in  relation  to 
Regulation (EC) No 1049/2001.  

86   Ibid. Paragraph 37. 
87   Ibid. Paragraph 38. 
88   As of 31 December 2019. 
89   Namely cases Validity v European Commission, T-640/20 op.cit.; Pollinis France v European Commission, 
T-554/20, op.cit.; Pollinis France v European Commission, T-371/20, op.cit.; ClientEarth AISBL v European 
Commission, T-255/20,  op.cit.; JP v European  Commission, T-247/20,  op.cit.; and  Huhtamaki v European 
Commission, T-134/20, op.cit. 

90   Namely Order of 14 December 2020, ClientEarth AISBL v European Commission, T-255/20, op.cit. 
91   Namely case ViaSat Inc. v European Commission, C-235/20P, op.cit. 
92   Namely judgments in ClientEarth v European Commission, C-612/18P op.cit., PL v European Commission, 
T-728/19,  op.cit.;  Marco  Bronckers  v  European  Commission,  T-166/19,  op.cit.;  Laurence  Bonnafous  v 
European  Commission,  T-646/18,  op.cit.;  ViaSat,  Inc.  v  European  Commission,  T-734/17,  op.cit.;  ViaSat, 
Inc.  v  European  Commission,  T-649/17,  op.cit.;  and  CBA  Spielapparate-  und  Restaurantbetriebs  GmbH  v 
European Commission, T-168/17, op.cit.  

93   Namely Order of 14 December 2020, ClientEarth AISBL v European Commission, T-255/20, op.cit. 

29 

 
 
                                                           
As  in  the  previous  years,  the  Secretariat-General,  jointly  with  the  Legal  Service,  regularly 
organised  seminars  to  update  the  staff  of  the  European  Commission  on  the  recent  case  law 
developments. 

30