Dear Taxation and Customs Union,

Under the right of access to documents in the EU treaties, as developed in Regulation 1049/2001, I am requesting the following document (or the same document as issued by the commission):

WK 12947 2026 INIT - 18/08/2026
Questions and answers on Omnibus XI on taxation

Yours faithfully,

elodie lamer
Nieuwezijds Voorburgwal 162
1012 SJ Amsterdam
The Netherlands

Dear Taxation and Customs Union,
Dear Sir or Madam,
Under Article 7(2) of Regulation (EC) No 1049/2001, I submit a confirmatory application asking the Secretariat-General to review the decision of 28 September 2026 by DG TAXUD (Ref. Ares(2026)9131661), refusing access in full to document WK 12947 2026 INIT of 18 August 2026, “Questions and answers on Omnibus XI on taxation” (application 2026/4369).
1. The decision
DG TAXUD refuses access under Article 4(1)(a), fourth indent, of Regulation 1049/2001, on the ground that disclosure would undermine the financial or economic policy of the Union and its Member States.
The decision essentially advances two reasons. First, disclosure would risk providing “aggressive tax planners” with information enabling them to adjust their tax optimisation products before the Council completes the adoption process, potentially affecting Member States’ finances.
Second, DG TAXUD argues that disclosure could create legal uncertainty because the Q&A does not necessarily reflect the Commission’s final assessment and the public might regard it as reflecting how the legislation ultimately adopted should be interpreted.
The decision also concludes that partial access is impossible because the document is entirely covered by the exception invoked.
I contest that decision on the following grounds.
2. The decision does not demonstrate that the exception applies
Exceptions to the right of access must be interpreted and applied strictly. Where an institution refuses access, it must explain how disclosure could specifically and actually undermine the interest protected by the exception relied upon. The risk must be reasonably foreseeable and not purely hypothetical (Council v Access Info Europe, C-280/11 P, paragraphs 30-31).
The decision does not, in my view, meet that standard. It relies principally on the general fact that the Q&A concerns anti-tax avoidance measures which remain under negotiation, without identifying what particular information in the document would cause the alleged harm.
The risk of tax planners “adjusting” is not concretely demonstrated. The Omnibus XI proposal is already public. The decision does not explain what information contained in the Q&A would enable aggressive tax planners to take steps that they could not already take on the basis of the proposal and other publicly available material.
Nor does the decision identify any concrete mechanism by which disclosure would negatively affect Member States’ finances. Instead, it states that tax planners could adjust their products and that the budgetary implications of the proposed measures would therefore “risk being exacerbated”. This does not establish what information in the requested document would produce that result or how the alleged financial consequences would arise.
The alleged legal uncertainty is not concretely linked to the protected interest. DG TAXUD argues that members of the public might mistake the Q&A for an authoritative interpretation of the legislation ultimately adopted. However, the decision does not demonstrate how such a misunderstanding would specifically and actually undermine the financial, monetary or economic policy of the Union or a Member State.
Moreover, the provisional and non-binding nature of the Q&A could readily be made clear when the document is disclosed. The fact that a document reflects the Commission’s assessment at a particular stage of an ongoing legislative procedure does not in itself establish that its disclosure would cause the harm protected by Article 4(1)(a).
The connection with financial or economic policy is asserted rather than demonstrated. DG TAXUD states that the potentially widespread consequences of the alleged legal uncertainty for the Union’s financial and economic policy “should not underestimate[d]”. That assertion does not identify a specific, actual and reasonably foreseeable harm resulting from disclosure of the document.
3. The legislative context requires particular attention to transparency
The requested document concerns a pending legislative proposal.
Recital 6 and Article 12(2) of Regulation 1049/2001 reflect the particular importance attached to transparency of documents drawn up or received in the course of procedures for the adoption of legally binding acts.
The Court has likewise stressed the importance of openness where institutions act in their legislative capacity. In Sweden and Turco v Council (Joined Cases C-39/05 P and C-52/05 P), the Court emphasised that openness in the legislative process contributes to conferring greater legitimacy on the institutions and increasing citizens’ confidence in them by allowing divergences between various points of view to be openly debated.
These principles are also reflected in Articles 10(3) TEU and 15(3) TFEU.
I recognise that Article 4(1)(a) establishes a mandatory exception and does not contain an overriding-public-interest test. However, the legislative context reinforces the requirement that the exception be interpreted strictly and that the alleged harm be established specifically and concretely rather than by reference to general considerations concerning an ongoing legislative process.
The decision does not address the legislative-transparency context of the requested document.
4. Comparable material concerning the same legislative file has already been disclosed
The Council, which is conducting the adoption process relied upon by DG TAXUD as the source of the alleged risk, has recently granted me access to detailed Member State comments concerning the same Tax Omnibus.
Those documents disclose Member States’ substantive positions on provisions of the proposal which remain under negotiation. They therefore reveal information directly concerning the ongoing legislative negotiations.
I recognise that each institution assesses requests for access to documents under its own responsibility and that a Commission Q&A is not identical in nature to Member State comments.
Nevertheless, the recent disclosure of substantive Member State positions concerning the same ongoing legislative file is directly relevant when assessing whether disclosure of the requested Q&A would create the specific and actual harm alleged by DG TAXUD.
In particular, the contested decision places considerable emphasis on the fact that the Council adoption process remains ongoing. DG TAXUD argues that disclosure before that process is complete would allow tax planners to adjust their behaviour. Yet substantive material concerning Member States’ positions during precisely that ongoing process has been disclosed.
The Commission should therefore explain, by reference to the actual content of the requested Q&A, why disclosure of this particular document would create a specific and actual risk to the financial or economic policy of the Union or its Member States.
The Council’s approach to legislative transparency provides further relevant context. Documents 6203/02 and 6898/02, point 22, formed part of the Council’s practice concerning access to documents reflecting delegations’ contributions to its work.
Following the judgment of the Court of Justice in Case C-280/11 P, Council v Access Info Europe, the Council subsequently reconsidered the treatment of documents containing delegations’ positions in ongoing legislative procedures, as recorded in document 7356/14.
In Access Info Europe, the Court rejected the proposition that disclosure of Member States’ identities in a document recording proposals made in an ongoing legislative procedure would, as such, seriously undermine the decision-making process.
I do not suggest that the Council’s practice is binding on the Commission, or that Member State comments and a Commission Q&A must necessarily receive identical treatment under Regulation 1049/2001. Rather, this material illustrates why the existence of an ongoing legislative negotiation cannot in itself establish the concrete harm required to justify withholding the requested document.
5. Partial access was not properly examined
Article 4(6) of Regulation 1049/2001 provides that, where only parts of a requested document are covered by an exception, the remaining parts must be released.
DG TAXUD states only that:
“partial access is not possible given the fact that this document is entirely covered by the exception” without providing any further explanation.
This is particularly difficult to reconcile with DG TAXUD’s own description of the document as a “compilation of detailed questions and answers”.
The decision does not explain why every separate question and answer, or every separable part thereof, would disclose information capable of assisting aggressive tax planning or creating the alleged legal uncertainty.
Even assuming that some answers contain particularly sensitive information capable of producing the harm identified by DG TAXUD, it does not follow that every question, every answer and every part of the document is necessarily covered by the same exception.
The single-sentence conclusion that the document is “entirely covered” therefore does not demonstrate that a concrete and individual examination of the possibility of partial access has been carried out.
6. Request
In light of the above, I ask the Secretariat-General to reconsider the initial decision and:
1. grant full access to document WK 12947 2026 INIT;
2. in the alternative, grant partial access following a concrete examination of the individual questions and answers, redacting only those passages for which disclosure is shown to create a specific and actual risk to an interest protected by Article 4(1)(a); and
3. if access continues to be refused in whole or in part, explain, by reference to the actual content of the document, how disclosure of the withheld information would give rise to a specific, actual and reasonably foreseeable risk to the financial, monetary or economic policy of the Union or a Member State.
The requested document is sought for the purpose of journalistic reporting on an ongoing EU legislative process of significant public interest.
Yours faithfully,
Elodie Lamer