EU Commission revises transparency rules to limit document access, prompting legal challenges

The European Commission's second term under Ursula von der Leyen began with a quiet but consequential institutional shift. At its first meeting on 4 December 2024, the College of Commissioners adopted revised Rules of Procedure containing an annex that narrows the application of the EU's transparency regulation, formalises document destruction and establishes broad new presumptions of secrecy. The changes have prompted two separate legal challenges and renewed criticism that the executive is systematically undermining the public's right to scrutinise its work.

What the revised rules change

The annex to the new Rules of Procedure sets out numerous limitations on Regulation 1049/2001, the law governing public access to European Parliament, Council and Commission documents. According to the legal analysis underpinning the challenges, the Commission now makes explicit that it will not apply the Court of Justice's established case law requiring proactive disclosure of legislative documents. Documents that should be automatically published to facilitate timely debate on legislative options become accessible only through complex, time‑consuming access requests that are unlikely to succeed.

The revised rules also formalise the practice of destroying documents and create new categories of general presumptions of secrecy with nearly unlimited temporal scope. Where the transparency regulation establishes a presumption of openness with narrowly defined exceptions, the Commission's internal rules invert that logic: vast areas of its activity are now presumed secret unless the applicant can overcome a series of procedural hurdles.

A pattern of strategic delay

The December revision did not emerge in a vacuum. For years, researchers, journalists and civil society organisations have documented what they describe as a policy of strategic delay in responding to access requests. Legal deadlines, 15 working days, extendable by a further 15, are routinely missed. Simple requests can take months or years. The European Ombudsman, Emily O'Reilly, has concluded that these systematic failures amount to maladministration. The Commission, however, does not engage with the Ombudsman's inquiries or recommendations.

In its responses to requesters, the Commission has characterised democratic debate as "external pressure" from which it must be insulated. The effect, critics argue, is to make timely and informed public debate impossible. When disclosure is so unlikely and so slow that even dedicated EU specialists stop asking, the Commission is left free to manoeuvre while feeding the public curated information from its own communications departments.

Legal challenges mounted on two fronts

The first challenge comes from ClientEarth, an environmental law charity. In March 2025 the organisation filed a request for internal review under the Aarhus Regulation, which implements the UNECE Aarhus Convention on access to information, public participation and access to justice in environmental matters. ClientEarth argues that the Commission's new rules breach the EU's international obligations under the Convention. If the internal review fails to remedy the breach, the case can proceed to the Court of Justice.

The second challenge was lodged directly before the General Court by a group of researchers including Emilio de Capitani, working with the NGO AccessInfo Europe. Their application contests the legality of the revised Rules of Procedure themselves, arguing that the Commission cannot unilaterally rewrite the scope of the transparency regulation through internal administrative rules. Exceptions to public access, they contend, must be laid down in law, not in the internal rules of individual institutions at their own discretion.

The Aarhus Convention dimension

The Aarhus Convention, ratified by the EU in 2005, grants the public rights to access environmental information held by public authorities. The Convention's compliance committee has previously found the EU in breach for failing to ensure that its institutions apply the transparency regulation in a manner consistent with the Convention. The Commission's new rules, which extend secrecy presumptions to environmental decision‑making documents, risk reopening that finding and exposing the EU to further international scrutiny.

ClientEarth's internal review request focuses on the Convention's requirement that environmental information be made available proactively and without the requester having to state an interest. The Commission's revised rules, by contrast, require applicants to navigate a layered exceptions regime that the NGO says is incompatible with the Convention's object and purpose.

Institutional power versus democratic accountability

The transparency dispute sits against a broader constitutional tension. The Commission has long argued that, as a supranational executive leading with expertise rather than electoral mandate, it does not require the same democratic accountability mechanisms as national governments. Yet its competences have expanded steadily, from competition and trade into fiscal surveillance, digital regulation, migration management and, most recently, defence industrial policy. Each expansion deepens the Commission's reach into national policy‑making without a corresponding deepening of public oversight.

The Treaty of Lisbon elevated transparency from a policy preference to a treaty obligation. Article 15 TFEU guarantees citizens the right to access documents of the Union's institutions, and the Charter of Fundamental Rights recognises the right to good administration, which includes the right to access one's file and the obligation of the administration to give reasons for its decisions. The Commission's internal rules, critics say, treat these treaty provisions as aspirational rather than binding.

The Ombudsman's unheeded findings

Emily O'Reilly, the European Ombudsman since 2013, has opened multiple inquiries into the Commission's access‑to‑documents practices. In a 2023 own‑initiative inquiry, she found that the Commission's systematic failure to reply within legal deadlines, its refusal to confirm or deny the existence of documents, and its destruction of documents before requesters can appeal constituted maladministration. The Commission rejected her recommendations. In a subsequent inquiry concerning the handling of sensitive documents, the Ombudsman again found maladministration; again, the Commission did not implement the proposed remedies.

This non‑engagement is itself a point of contention. The Ombudsman's role, established by the Treaty, is to investigate complaints about maladministration in EU institutions. While her findings are not legally binding, they carry political weight and have historically prompted institutional adjustments. The Commission's refusal to engage signals a shift in the inter‑institutional balance.

What the Court has already said

The Court of Justice has repeatedly reinforced the transparency regulation's presumption of openness. In the landmark ClientEarth v Commission judgment (C‑673/13 P), the Court held that exceptions to disclosure must be interpreted strictly and that the institution bears the burden of proving that disclosure would undermine a protected interest. In De Capitani v Commission (T‑194/19), the General Court annulled a Commission refusal to grant access to documents concerning the negotiation of trade agreements, ruling that the institution had not demonstrated a reasonably foreseeable risk to the commercial interests invoked.

More recently, in European Parliament v Council (C‑57/22), the Court confirmed that legislative documents, including drafts and working papers, must be made proactively available to enable public participation in the legislative process. The Commission's revised rules explicitly reject this case law, stating that the institution has no intention of applying it.