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EUROPEAN COMMISSION
Competition DG

   The Director General

Brussels, 18 August 2022
COMP/A3/AB/2022/HT.2229
comp.a.3(2022)6363121

Samuel Stolton
Politico
Rue de la Loi 62
1040 Brussels

E-mail: ask+request-11530-
xxxxxxxx@xxxxxxxx.xxx

By e-mail and registered mail

Subject:  GESTDEM  2022/3807  –  Your  request  of  4 July 2022  for access to
documents  pursuant to Regulation (EC) No. 1049/2001 relating  to  a phone call
between EVP Vestager and Minister Le Maire

Dear Sir,
Thank you for your message of 4 July 2022, registered on 5 July 2022 under GESTDEM
number 2022/3807, concerning Executive Vice President Vestager's phone call meeting
with France's Economy Minister Bruno Le Maire on Monday 4 July 2022, in which you
request access to documents in the Commission's case file in accordance with Regulation
(EC) No. 1049/20011 ("Regulation 1049/2001").
1.  DOCUMENTS CONCERNED
In your message  you request  access  to  all  documentation (including but not limited to:
general communications of any nature, written material of any kind, email
correspondences, background papers, briefing papers, transcriptions of meetings,
readouts of meetings, summaries of meetings, briefings for meetings, etc)  concerning the
above mentioned call.
The documents you request access to form part of the case file in a pending  State aid
investigation under Article 107/108 of the TFEU in which no final decision has yet been
adopted by the Commission.

1  Regulation (EC) N° 1049/2001  regarding  public access to European Parliament, Council and
Commission documents, OJ L145 of 31.5.2001, p. 43

Commission européenne, B-1049 Bruxelles / Europese Commissie, B-1049 Brussel - Belgium

link to page 2 link to page 2 link to page 2 Having carefully examined your request in the light of Regulation 1049/2001, I have come
to the conclusion that the documents you have requested access to fall under the exceptions
of Article  4 of Regulation 1049/2001. Access to these  documents, therefore, has to be
refused, with the exception provided in Section 4 (Partial Access) hereunder. Please find
below the detailed assessment as regards the application of the exceptions of Article 4 of
Regulation 1049/2001.
2.  APPLICABLE EXCEPTIONS
As the effects of granting access to documents under Regulation 1049/2001 are erga omnes,
in the sense that such documents become public, the disclosure of the requested documents
at this stage might  hurt the protection of lawful interests, as set forth in Article 4 of
Regulation 1049/2001. Once access is granted, any potential requester receives access to the
documents in question, irrespective of its legal standing, involvement in the competition
case or not or other specific interests it may have, as "the purpose of the regulation is to
guarantee access for everyone to public documents and not just access for the requesting
party to documents concerning it".2
Article 4(2), third indent, protection of the purpose of investigations and  Article 4(3)
protection of the institution's decision making process
Pursuant to Article 4(2), third indent of Regulation 1049/2001 the Commission shall refuse
access to a document where its disclosure would undermine the protection of the purpose of
inspections, investigations and audits.
Pursuant to Article 4(3), access to the documents drawn by the Commission or received by
the Commission shall be refused if the disclosure of the documents would seriously
undermine the Commission's decision making process.
These exceptions aim at protecting the Commission's capacity to ensure that Member States
and undertakings comply with their obligation under European Union law. For the effective
conduct of pending investigations it is of utmost importance that the Commission's
investigative strategy, preliminary assessments of the case and planning of procedural steps
remain confidential.
In TGI3, a case which concerned an access to documents request to all documents in two
State aid cases, the Court of Justice upheld the Commission's refusal and held that there
exists with regard to the exception related to the protection of the purpose of
investigations a general  presumption that disclosure of documents in the file would
undermine the purpose of State aid investigations. The Court reasoned that this follows
from the fact that under the State aid procedural rules the interested parties, other than the
Member State concerned, have no right to consult the documents in the administrative
file and should such access be granted under Regulation 1049/2001 the nature of the
procedure is likely to be modified and thus the system for review of State aid would be
called into question4. This line of reasoning was upheld by the Court in Sea Handling v

2  See Joined Cases T-110/03, T-150/03 and T-405/03, Sison v Council, paragraph 50; Case T-181/10,
Reagens SpA v Commission, paragraph 143
3  See Case C-139/07 P, Commission v Technische Glaswerke Ilmenau GmbH
4  See Case C-139/07 P, Commission v Technische Glaswerke Ilmenau GmbH, paragraphs 58-59

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link to page 3 link to page 3 link to page 3 Commission even when it comes to a reduced number of documents pertaining to a State
aid file5.
It is noteworthy that in State aid procedures the Commission relies on submissions by the
Member State concerned which typically contain sensitive data, including information
related to the economic activities of undertakings. It therefore follows that, similarly to
Agrofert6, disclosure of this information in State aid investigations would risk
jeopardising the willingness of the Member State to cooperate with the Commission's
State aid investigations even after the definitive closure of the case.
The State aid procedural regulations, especially Regulation 2015/15897, contain specific
rules regarding treatment of information obtained in the context of such proceedings and
allowing public access to it on the basis of Regulation 1049/2001 would, in principle,
jeopardise the balance which the Union legislature wished to ensure in State aid
procedures between the obligation on Member States to communicate possibly sensitive
information (including sensitive commercial information related to undertakings) to the
Commission and the guarantee of increased protection in accordance with the State aid
procedural  regulations.  In essence, the State aid  procedural regulations and Regulation
1049/2001  have different aims but must be interpreted and applied in a consistent
manner. The rules on access to file in the above-mentioned regulations are also designed
to ensure observance of professional secrecy and are of the same hierarchical order as
Regulation 1049/2001 (so that neither of the two sets of rules prevails over the other).
As mentioned above, the requested documents relate to a State aid investigation and contain
information from which the direction of the investigation, the future procedural steps which
the Commission may take,  as well as its investigative strategy may be revealed to the
public. This information could easily be misinterpreted or misrepresented as indications of
the Commission's possible final assessment in this case. Such misinterpretations and
misrepresentations may cause damage to the reputation and standing of the potential
beneficiaries investigated, in particular if no decision is adopted establishing a violation of
the competition rules.
The requested documents would reveal the Commission's investigation strategy and their
disclosure would therefore undermine the protection of the purpose of the investigation and
would also seriously undermine the Commission's decision making process.  The
Commission's services must be free to explore all possible options in preparation of a
decision free from external pressure.
In view of the foregoing, the requested documents are manifestly covered in their entirety
by the exception  related to the protection of the purpose of the Commission's State aid
investigations set out in Article 4(2), third indent of Regulation 1049/2001. Moreover, the
internal Commission documents and documents received by the Commission in the file are
also covered by the exception related to the protection of the Commission's decision-
making process, set out in Article 4(3) of Regulation 1049/2001.

5  See Case T-456/13, Sea Handling SPA v Commission, paragraphs 55-58 and 61
6  See Case C-477/10 P, Commission v Agrofert, paragraph 66
7  Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of
Article 108 of the Treaty on the Functioning of the European Union (Text with EEA relevance) OJ L
248 of 24.9.2015, p. 9–29

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Article 4(2), first indent, protection of commercial interests
Pursuant to Article 4(2), first indent of Regulation 1049/2001 the Commission shall refuse
access to a document where disclosure would undermine the protection of commercial
interests of a natural or legal person.
Economic entities have a legitimate commercial interest in preventing third parties from
obtaining strategic information on their essential, particularly economic interests and on the
operation or development of their business. Moreover, the assessments  made by the
Commission and contained in Commission's documents are  commercially sensitive,
particularly at a stage where an investigation has not been finally concluded yet.
The documents requested by you, as specified above, are part of the file in a competition
case, have not been brought into the public domain and are known only to a limited number
of persons. In particular, the documents you request access to contain commercial and
market-sensitive information regarding the activities of the potential beneficiaries, whose
public disclosure would undermine  the latters' commercial interests. This information
concerns in particular commercial strategies. Disclosure of these  documents could bring
serious harm to the undertakings' commercial interests.
In view of the foregoing the requested documents are covered by the exception set out in
Article 4(2), first indent of Regulation 1049/2001.
Nonetheless, I am pleased to inform you that DG COMP services carried out an assessment
of the case file and identified a section of one of the requested documents, which does not
refer to an ongoing state aid investigation, and to which the above general presumption does
therefore not apply. This document is enclosed in the annex to this letter.
3.  OVERRIDING PUBLIC INTEREST IN DISCLOSURE
Pursuant to Article 4(2) and (3) of Regulation 1049/2001, the exception to the right of
access contained in that Article must be waived if there is an overriding public interest in
disclosing the documents  requested. In order for an overriding public interest in
disclosure to exist, this interest, firstly, has to be public (as opposed to private interests of
the applicant) and, secondly, overriding, i.e.  in this case it must outweigh the interest
protected under Article 4(2), first and third indents, and 4(3) of Regulation 1049/2001.
In your application you have not established arguments that would present an overriding
public interest  to disclose the documents to which  access has been hereby denied.
Consequently, the prevailing interest in this case lies in protecting the effectiveness of the
Commission’s investigations, its decision-making process and the commercial interests
of the undertakings concerned.
4.  PARTIAL ACCESS
I have also considered the possibility of granting partial access to the documents for
which access has been denied in accordance with Article 4(6) of Regulation 1049/2001.
However, the general presumption of non-disclosure invoked above also applies to partial

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disclosure for all the documents concerned and, consequently, no partial access can be
granted, with the following exception.
Partial access can be granted to the section “Semiconductors – Chips Act” of the briefing
prepared ahead of the call. The other parts of the document are covered by the
abovementioned exceptions to the right of access to file and are thus blanked out.
5.  MEANS OF REDRESS
If you want this position to be reviewed you should write to the Commission's Secretary-
General at the address below, confirming your initial request. You have fifteen (15)
working days in which to do so from receipt of this reply after which your initial request
will be deemed to have been withdrawn.

The Secretary-General will inform you of the result of this review within fifteen (15)
working days from the registration of your request, either granting you access to the
documents or confirming the refusal. In the latter case, you will be informed of how you
can take further action.

All correspondence should be sent to the following address:
  European Commission
Secretariat-General
Transparency, Document Management & Access to Documents (SG.C.1)
BERL 7/076
B-1049 Bruxelles

or by email to: xxxxxxxxxx@xx.xxxxxx.xx.

Yours faithfully,

  Electronically signed
Olivier GUERSENT

Enclosure:
briefing document indicated above.

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Document Outline