My appeal has been refused or I have received documents with redacted information. How can I challenge this?

If your appeal (“confirmatory application“) has been partially or totally refused, you now have two options: you can challenge the refusal before the European Ombudsman, or you can challenge the refusal before the General Court of the EU.

Filing a European Ombudsman complaint:

  • Advantages: filing a complaint to the European Ombudsman is usually the most approachable option for FOI requesters. First, because it is free of charge. Second, because you don’t need a lawyer or knowledge of EU law to write and file a complaint; you can do it yourself. Third, because submitting a complaint is easy; you can do it through FragDenStaat under the tab ‘Start mediation’. Fourth, because the deadlines are more relaxed: you have 2 years to file your complaint, counting from the moment your FOI appeal was refused. Fifth, because the process is quicker than a lawsuit; you should receive a response from the Ombudsman within two months.
  • Disadvantages: complaining to the Ombudsman has one main disadvantage, which is that her recommendations are not binding. This means that if the Ombudsman sides with you and finds the documents you requested should be public, she will recommend the institution to disclose the documents, but institutions can choose not to follow this recommendation. There is no penalty for institutions that decide to ignore an Ombudsman recommendation.

Filing a lawsuit before the General Court of the EU:

  • Advantages: unlike the European Ombudsman, the court’s decisions are binding for institutions, which means that if you can get the court to side with you and rule in favour of disclosure, institutions will be obliged to disclose the documents you wanted. You will also be creating a legal precedent, making the documents you obtained available for everyone else who wants to request them in the future.
  • Disadvantages: bringing a case before the General Court of the EU is a technically complicated and lengthy process which can entail costs.

Here are some considerations you should keep in mind: 

  1. You will need a lawyer that will represent you before the court; we recommend you find a lawyer or a legal team who is already familiar with this court (European Court of Justice) and EU law. 
  2. Deadlines are tight; from the moment you receive the negative response to your appeal, you have 2 months and 10 days to file your submission before the court. 
  3. EU lawsuits can be lengthy, which means that by the time the court reaches a verdict, the documents you wanted might have lost their value; on average, a lawsuit will last 1.5 to 2 years per instance, until you get a judgement. 
  4. If you lose the case, you might need to pay costs that can be more or less expensive. This will usually depend on whether the EU institution you’re suing had to hire private lawyers for your case or not; if the institution used their own, in-house lawyers, they will usually not claim costs if you lose the case, or if they do it will usually not exceed € 3,000 per instance. If the institution did hire private lawyers, it is likely they will make you pay the bill if you lose the case; the amount could range between € 8,000 to € 30,000. Do bear in mind that the General Court has a legal aid mechanism to help you fund your lawsuit; if you wish to apply, you will need to do so before you file your lawsuit, during the 2 months and 10 days period.