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The Director General
Brussels, 13 March 2023
NL- 9743 PA Groningen
Subject: EASE 2023/0692 – Your request of 30 January 2023 for access to
documents pursuant to Regulation (EC) No. 1049/2001
Thank you for your message of 30 January 2023, registered on 1 February 2023 under the
above-mentioned reference number, in which you request access to documents concerning a
number of meetings between the Commission and third parties in accordance with
Regulation (EC) No. 1049/20011
1. DOCUMENTS CONCERNED
In your message, you request access to al minutes, agendas, summaries, notes or memos
issued before or after; documents prepared for, issued in preparation for, or exchanged
during; as well as all correspondence including attachments by either of the meeting parties
related to several meetings.
Please note that the present letter addresses your request to access to documents related to:
1. The meeting between representatives from EU Travel Tech and Executive Vice
President Vestager’s cabinet member Penelope Papandropoulos of 17 January
2. The meeting between Latham & Watkins LLP and Executive Vice President
Vestager’s cabinet members Michele Piergiovanni, Penelope
Papandropoulos, Stina Soewarta and Pierre-Arnaud Proux of 11 January
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
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Please note that due to the wide scope of your request, covering also areas falling under the
responsibility of the Secretariat-General of the Commission, part of your request (that
relating to the other meetings not listed above) has been at ributed to the Secretariat-General
(EASE No 2023/0712). This reply relates only to the documents held by the Directorate-
General for Competition. You will receive the reply from the Secretariat-General in due
The documents identified under point 1 concern the minutes of a meeting with EU Travel
Tech on the Regulation on Multimodal Digital Mobility Services (“MDMS”), the request
for the meeting, the positive reply and internal communication for the meeting.
The documents identified under point 2 concern the minutes of a meeting with a lawfirm
representing a client on the enforcement of the Digital Markets Act (“DMA”), the request
for the meeting, the positive reply and internal communication for the meeting.
As regards the documents identified under point 1 above, there are two documents, namely
the exchange of emails to set up the meeting and a letter received from EU Travel Tech,
which can both be disclosed. In the case of the exchange of emails, however, a complete
disclosure is prevented by the exception concerning the protection of privacy and the
integrity of the individual outlined in Article 4(1)(b) of Regulation (EC) No 1049/2001.
Please note that the documents originating from EU Travel Tech are disclosed to you based
on Regulation (EC) No 1049/2001. However, this disclosure is without prejudice to the
rules on intellectual property, which may limit your right to reproduce or exploit the
released documents without the agreement of the originator, who may hold an intel ectual
property right on them. The European Commission does not assume any responsibility from
As regards the rest of the documents identified under point 1, as well as all those identified
under point 2 above, I have come to the conclusion that they fal under the exceptions of
Article 4 of Regulation 1049/2001. Access to these documents, therefore, has to be refused.
Please find below the detailed assessment as regards the application of the exceptions of
Article 4 of Regulation 1049/2001.
2. APPLICABLE EXCEPTIONS
Article 4(2), first indent, protection of commercial interests
Article 4(2), third indent, protection of the purpose of investigations
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.
Pursuant to Article 4(2), third indent of Regulation 1049/2001 the Commission shal refuse
access to a document where its disclosure would undermine the protection of the purpose of
inspections, investigations and audits.
In its judgment in Case C-404/10 P Commission v Odile Jacob2
, the Court of Justice held
that for the purposes of interpretation of the exceptions in Article 4(2), first and third
indent of Regulation 1049/2001, there is a general presumption that disclosure of
2 Case C-404/10 P, Commission v Odile Jacob,
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documents exchanged between the Commission and notifying and other (third) parties in
merger procedures in principle undermines the protection of the commercial interests of
the undertakings involved and also the protection of the purpose of investigations related
to the merger control proceedings.
The Court ruled that, by analogy to the case law in cases TGI3, Bavarian Lager4
, Regulation 1049/2001 has to be interpreted and applied in a manner which is
compatible and coherent with other specific rules on access to information. The Court
referred in particular to the Merger Regulation and emphasised that it not only governs a
specific area of European Union law, but is also designed to ensure respect for
professional secrecy and is, moreover, of the same hierarchical order as Regulation
1049/2001 (so that neither of the two set of rules prevails over the other). The Court
stated that, if documents in the merger case-files were to be disclosed under Regulation
1049/2001 to persons other than those authorised to have access according to the merger
control legislation, the scheme instituted by that legislation would be undermined. In that
regard, the Court ruled that this presumption applies regardless of whether the request for
access concerns merger control proceedings which have already been closed or
proceedings which are pending.
Based on the same reasoning, the Court recognized in Agrofert6
presumptions of non-disclosure are applicable to merger control proceedings, because the
legislation which governs those proceedings also provides for strict rules regarding the
treatment of information obtained or established in the context of such proceedings. The
disclosure of such documents would undermine the procedural rules system set up by the
Merger Regulation, and in particular the rules on professional secrecy and access to the
In the EnBW
case, the Court of Justice held that there is, with regard to the exception
related to the protection of the purpose of investigations, a general presumption that
disclosure of documents in cases regarding the application of Articles 101 and 102 TFEU
(antitrust cases), would undermine the purpose of the access system introduced by
Regulations No 1/2003 and 773/20047
As ruled by the Court of Justice in the Agrofert
for merger proceedings, and by the
General Court in the Bitumen
for antitrust proceedings, if a document is not
accessible under the "access to file procedure", it cannot be made available to the public
under Regulation 1049/2001. In essence, Regulations 1/2003 and 773/2004 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
3 Case C-139/07 P, Commission v Technische Glaswerke Ilmenau
4 Case C-28/08 P, Commission v Bavarian Lager
5 Cases C-514/07 P, C-528/07 P and C-532/07 P, Sweden and Others v API and Commission
6 Case C-477/10 P, Commission v Agrofert Holding,
ECLI:EU:C:2012:394, paragraph 59.
7 Case C-365/12 P, Commission v EnBW Energie Baden-Württemberg
, paragraphs 61-63.
9 Case T-380/08, Netherlands v Commission
, ECLI:EU:T:2013:480, paragraphs 32-40
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designed to ensure respect for 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).
Furthermore, in the recent Múka
case, the General Court recalled that, as interested
parties other than those directly concerned in State aid control procedures (the Member
States) do not have the right to consult the documents in the Commission’s
administrative file, there is a general presumption that disclosure of documents in the
administrative file undermines, in principle, the protection of the purpose of investigation
activities, and also held that this presumption applies regardless of whether the request
for access concerns a control procedure which has already been closed or one which is
The same reasoning used in the previously mentioned case law to establish a general
presumption of non-disclosure for documents belonging to merger, antitrust and state aid
case files is fully applicable to the disclosure of documents exchanged between the
Commission and notifying and other (third) parties in the enforcement of the DMA and
preparation of enforcement, given that this Regulation contains very similar provisions as
regards both the obligation of professional secrecy and the access to file procedure11
documents in the DMA case files were to be disclosed under Regulation 1049/2001 to
persons other than those authorised to have access to them according to the DMA, the
procedural scheme instituted by the latter would be undermined.
Consequently, and by analogy to what has been repeatedly recognized by the case-law in
the context of merger, antitrust and state aid investigations, there is a general
presumption that disclosure of documents in DMA case files in principle undermines the
protection of the commercial interests of the undertakings involved and also the
protection of the purpose of investigations related to the DMA proceedings, and this
presumption applies regardless of whether the request for access concerns DMA
proceedings which have already been closed or proceedings which are pending.
Natural and legal persons submitting information in the context of the DMA have a
legitimate expectation that – apart from the publication of the non-confidential
summaries provided for in Articles 8(6) and 18 (5) and (6) of the DMA and of the non-
confidential versions of final decisions pursuant to Article 44 of the DMA – the
information they supply to the Commission on an obligatory or voluntary basis under the
DMA will not be publicly disclosed.
The documents requested by you under point 2, as specified above, are part of the file in a
DMA 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 involved undertakings
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.
Undertakings have a legitimate interest that the information is used only for the purposes
of the Commission proceedings in application of the DMA. It is for this reason that
Article 36(1) of the DMA provides that information collected pursuant to this Regulation
10 Case T-214/21, Múka v Commission
, ECLI:EU:T:2022:607, paragraphs 44 and 55.
11 See, in this regard, Articles 34(4) and 36 of the DMA.
is used only for the purposes of this Regulation, namely the administrative proceedings
carried out under its provisions.
Also, pursuant to Article 36(4) of the DMA, information covered by professional secrecy
submitted to the Commission in the context of this Regulation cannot be disclosed to the
These exceptions aim at protecting the Commission's capacity to ensure that undertakings
comply with their obligations 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
Careful respect by the Commission of its obligations regarding professional secrecy
creates a climate of mutual confidence between the Commission and undertakings, under
which the latter cooperate by providing the Commission with the information necessary
for its investigations.
In these circumstances, disclosure despite the protection provided for by the DMA,
would lead to a situation where undertakings subject to investigations and potential
informants and complainants would lose their trust in the Commission's reliability and in
the sound administration of DMA files. These parties would then become reluctant to
cooperate with the Commission and would reduce their cooperation to a minimum. This,
in turn, would jeopardise the Commission's authority and lead to a situation where the
Commission would be unable to properly carry out its task of enforcing the DMA.
Consequently, the effective enforcement of the DMA would be undermined.
It thus follows that the requested documents are covered by a general presumption of
non-disclosure of documents in DMA case-files.
In view of the foregoing the requested documents under point 2 above are covered by the
exception set out in Article 4(2), first indent and third indent of Regulation 1049/2001.
Article 4(3) protection of the institution's decision-making process
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.
In relation to the documents under point 1, the requested documents have been gathered
by the Commission in the context of the ongoing MDMS legislative process. Since the
proposal for a regulation has not been yet adopted, public disclosure of any of the
requested documents (except the letter and exchange of emails to which access is hereby
granted) would expose the Commission and its services to undue external pressure, hence
reducing its independence and its margin of manoeuvre. This would clearly seriously
undermine the Commission's decision-making process.
In view of the foregoing these documents are covered by the exception set out in Article
4(3) of Regulation 1049/2001.
Article 4(3) protection of privacy and the integrity of the individual
With regard to the exchange of emails to set up the meeting under point 1 above, a complete
disclosure of this document is prevented by the exception concerning the protection of
privacy and the integrity of the individual outlined in Article 4(1)(b) of Regulation (EC) No
1049/2001, because it contains the following personal data:
the names and contact information of Commission staff members not pertaining to
the senior management;
the names and contact details of other natural persons.
Article 9(1)(b) of the Data Protection Regulation does not allow the transmission of these
personal data, except if you prove that it is necessary to have the data transmit ed to you for
a specific purpose in the public interest and where there is no reason to assume that the
legitimate interests of the data subject might be prejudiced. In your request, you do not
express any particular interest to have access to these personal data nor do you put forward
any arguments to establish the necessity to have the data transmit ed for a specific purpose
in the public interest.
Consequently, I conclude that, pursuant to Article 4(1)(b) of Regulation (EC) No
1049/2001, access cannot be granted to the personal data contained in the requested
document, as the need to obtain access thereto for a purpose in the public interest has not
been substantiated and there is no reason to think that the legitimate interests of the
individuals concerned would not be prejudiced by disclosure of the personal data concerned.
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 indent, 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.
As regards the documents under point 2, the general presumption of non-disclosure
invoked above also applies to partial disclosure for all the documents concerned and,
consequently, no partial access can be granted.
As regards the documents under point 1 to which access has been denied, after careful
examination I have come to the conclusion that only fragmented parts, the reading of
which would be meaningless, would not be covered by the applicable exception.
Therefore, no partial access can be granted to these documents.
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 letter, 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 wil be informed of how you can
take further action.
Al correspondence should be sent to the following address:
Transparency, Document Management & Access to Documents (SG.C.1)
or by email to: firstname.lastname@example.org.