Ref. Ares(2024)926415 - 07/02/2024
EUROPEAN COMMISSION
DIRECTORATE-GENERAL FOR COMMUNICATIONS NETWORKS, CONTENT AND
TECHNOLOGY


The Director-General
Brussels,
CNECT.R.4
Samuel Stolton
Bloomberg International Press
Centre Brussels, 1041
Belgium

By email:
ask+request-13572-
xxxxxxxx@xxxxxxxx.xxx

Subject:
Your application for access to documents – EASE 2023/6843
Dear Sir,
We refer to your email dated 26 September 2023 wherein you make a request for access to
documents pursuant to Regulation (EC) No 1049/2001 of the European Parliament and of
the Council of 30 May 2001 regarding public access to European Parliament, Council and
Commission documents (hereinafter ‘Regulation 1049/2001’), registered on 27 September
2023.  We  also  refer  to  our  email,  dated  22  November  2023,  our  reference
Ares(2023)7963257 whereby we informed you that part of your request was attributed to
our  Directorate-General  on  16  November  2023  under  the  abovementioned  reference
number.
1.
SCOPE OF YOUR APPLICATION
Your application reads as follows:
΄΄Dear Secretariat General of the European Commission,
Under  the  right  of  access  to  documents  in  the  EU  treaties,  as  developed  in
Regulation  1049/2001,  I  am  requesting  documents  which  contain  the  following
information:
-  All  documentation  regarding  a  meeting  on  September  26th  between
Commissioner  Breton  and  Apple  CEO  Tim  Cook.  This  documentation  should
include  but  not  be  limited  to:  general  communications  of  any  nature,  written

Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË – Tel. +32 22991111
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx@xx.xxxxxx.xx

material of any kind, consultation notes, email correspondences, attendance lists,
agendas, background papers, briefing papers, transcriptions of meetings, readouts
of meetings, summaries of meetings, briefings for meetings, etc.
- All documentation regarding a meeting on September 26th between Commissioner
Reynders and Apple CEO Tim Cook. This documentation should include but not be
limited  to:  general  communications  of  any  nature,  written  material  of  any  kind,
consultation notes, email correspondences, attendance lists, agendas, background
papers,  briefing  papers,  transcriptions  of  meetings,  readouts  of  meetings,
summaries of meetings, briefings for meetings, etc.΄΄
Due  to  the  scope  of  your  request,  covering  areas  falling  under  the  responsibility  of
different Directorates-General, your request was split between:
a) Directorate–General for Communications Networks, Content and Technology (DG
CONNECT), under reference number EASE 2023/6843,
b)  Directorate–General  for  Justice  and  Consumers  (DG  JUST),  under  reference
number EASE 2023/5599.
This reply relates only to the reference number EASE 2023/6843 and to the meeting
on 26 September between Commissioner Breton and Apple CEO Tim Cook. You will
receive  a  separate  reply  related  to  EASE  2023/5599  from  the  other  respective
Directorate-General.
2.
DOCUMENTS FALLING WITHIN THE SCOPE OF THE REQUEST
We have identified the following documents as falling within the scope of your application:
-  Email of 16 August 2023 – Apple: CEO – Meeting request, Ares(2023)5627448
(Document 1)
-  Annex  to  the  email  of  16  August  2023:  Apple  -  Meeting  request  081623,
Ares(2023)5627448 (Document 2)
-  Email  exchanges  16  August  –  20  September  2023  with  regard  to  the  CEO  Tim
Cook  -  Commissioner  Breton  meeting  on  26th  September,  Ares(2023)5627448,
(Document 3)
-  Readout of meeting with Apple, Ares(2023)6696565 (Document 4)
-  Briefing for the meeting between Commissioner Breton and Apple CEO Tim Cook,
CAB BRETON/2305 (Document 5)
-  Briefing for the Platforms (DSA, DMA), CAB BRETON/2267 (Document 6)
3.
ASSESSMENT UNDER REGULATION 1049/2001
Following an examination of the identified documents under the provisions of Regulation
1049/2001 and taking into account the opinion of the third party, we have arrived at the
conclusion that partial access can be granted to five documents, whilst access should be
refused for one document, as disclosure is prevented by exceptions to the right of access
laid down in Article 4 of Regulation 1049/2001.
A. Partial disclosure
(i) Protection of privacy and integrity of the individual
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Full disclosure of Documents 1 - 5 is prevented by the exception concerning the protection
of privacy and integrity of the individual outlined in Article 4(1)(b) Regulation 1049/2001,
since they contain the following personal data:
- Names, functions and contact details of Commission staff members not pertaining
to the senior management
- Names, functions, handwritten signatures, CV and contact details of other natural
persons.
Article 9(1)(b) of the Data Protection Regulation 1 does not allow the transmission of these
personal data, except if you prove that it is necessary to have the data transmitted 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 transmitted for a specific purpose
in the public interest.
Consequently, I conclude that, pursuant to Article 4(1)(b) Regulation 1049/2001, access
cannot be granted to the personal data contained in the requested documents, 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.
(ii) Protection of the decision-making process
The first subparagraph of Article 4(3) of Regulation 1049/2001 provides that ‘access to a
document, drawn up by an institution for internal use or received by an institution, which
relates to a matter where the decision has not been taken by the institution, shall be refused
if disclosure of the document would seriously undermine the institution’s decision-making
process, unless there is an overriding public interest in disclosure.’
The second subparagraph of Article 4(3) of Regulation 1049/2001 provides that ‘access to
a document, containing opinions for internal use as part of deliberations and preliminary
consultations within the institution concerned shall be refused even after the decision has
been  taken  if  disclosure  of  the  document  would  seriously  undermine  the  institution’s
decision-making process, unless there is an overriding public interest in disclosure.’
Parts of Document 5 are covered by the abovementioned exceptions of Article 4(3) since
they contain sensitive information with regard to  the ongoing procedures relating to the
Cyber Resilience Act (CRA) proposal, the Artificial Intelligence Act, the process of the
EU Digital Identity framework and the process of the Digital Euro which have not been
concluded  yet.  They  also  contain  considerations  with  regard  to  the  semiconductors.
Furthermore, these parts contain reflections and views of the Commission services and of
other  parties.  Speculations  and  misinterpretations  of  the  public  on  the  views,  positions,
considerations put forward at earlier stages of the procedures would affect the exploration
of  different  options  and  expose  the  Commission  to  external  pressure.  They  would  also

1Regulation  (EU)  2018/1725  of  the  European  Parliament  and  of  the  Council  of  23  October  2018  on  the
protection of natural persons with regard to the processing of personal data by the Union institutions, bodies,
offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and
Decision No 1247/2002/EC, OJ L 295, 21.11.2018, p. 39.

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deter third parties and Commission services and officials from putting forward their views
without being unduly influenced by the prospect of wide disclosure and would seriously
undermine the Commission’s functioning and internal decision-making process. This risk
is also reasonably foreseeable and not purely hypothetical.
Consequently,  the  above-mentioned  parts  have  been  blanked  out  as  their  disclosure  is
prevented by the exceptions of Article 4(3) of Regulation 1049/2001.
B. Non-disclosure
We  regret  to  inform  you  that  access  to  Document  6  cannot  be  granted  as  disclosure  is
prevented  by  exceptions  to  the  right  of  access  laid  down  in  Article  4(2),  first  indent  of
Regulation 1049/2001 (protection of commercial interests) and Article 4(2), third indent
of Regulation 1049/2001 (protection of the purpose of investigations).
Document  6  is  an  internal  document  (briefing)  with  information  relating  to  the
implementation and enforcement of the Digital Services Act (‘DSA’) and to the Digital
Markets Act (‘DMA’), including information provided by the entities concerned pursuant
to Article 67 of DSA Regulation which will enable the Commission to carry out its duties
under the DSA Regulation. Based on the assessment of this information, the Commission
will assess next steps, which could entail the formal opening of proceedings pursuant to
Article 66 of the DSA.
In its judgment in Case C-404/10 P Commission v Odile Jacob 2, 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  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.
In  addition,  the  Court  ruled  in  Case  C-404/10  P  that  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  explained  for  the  example  of  the  Merger
Regulation that where a specific area of European Union law is 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), this needs to be
taken into account for the application of Regulation 1049/2001. The Court stated that, if
documents of such case-files were to be disclosed under Regulation 1049/2001 to persons
other  than  those  authorised  to  have  access  according  to  specific  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  proceedings
which have already been closed or proceedings which are pending.
Based on the same reasoning, the Court recognized in Agrofert 3 that general 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

2Case C-404/10 P, Commission v Odile Jacob, ECLI:EU:C:2012:393.
3Case C-477/10 P, Commission v Agrofert Holding, ECLI:EU:C:2012:394, paragraph 59.
4

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 file.
In the case C-365/12 P, Commission v EnBW Energie Baden-Württemberg 4, 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 773/2004.
Also, as ruled by the Court of Justice in the Agrofert case5 for merger proceedings, and by
the  General  Court  in  the  Bitumen  case6  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 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 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 pending7.
The  same  reasoning  used  in  the  above  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 internal documents of the Commission and
documents  exchanged  between  the  Commission  and  other  (third)  parties  in  the
enforcement of the DSA and preparation of enforcement, given that the DSA Regulation
contains very similar provisions as regards both the obligation of professional secrecy and
the access to file procedure8. If documents in the DSA case files were to be disclosed under
Regulation  1049/2001  to  persons  other  than  those  authorised  to  have  access  to  them
according  to  the  DSA,  the  procedural  schemes  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 DSA 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  DSA  proceedings,  and  this  presumption  applies
regardless of whether the request for access concerns DSA proceedings which have already
been closed or proceedings which are pending.
Undertakings  have  a  legitimate  commercial  interest  in  preventing  third  parties  from
obtaining strategic information on their essential, particularly economic interests and on

4Case C-365/12 P, Commission v EnBW Energie Baden-Württemberg, ECLI:EU:C:2014:112, paragraph 88.
5Agrofert, paragraphs 61-63.
6Case T-380/08, Netherlands v Commission, ECLI:EU:T:2013:480, paragraphs 32-40
7Case T-214/21, Múka v Commission, ECLI:EU:T:2022:607, paragraphs 44 and 55.
8See, in this regard, Articles 79 and 84 of the DSA.
5

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.
Undertakings  also  have  a  legitimate  interest  that  the  information  is  used  only  for  the
purposes of the Commission proceedings in application of the DSA. It is for this reason
that  Article  79(5)  of  the  DSA  provides  that  information  collected  pursuant  to  this
Regulation  is  used  only  for  the  purposes  of  this  Regulation,  namely  the  administrative
proceedings carried out under its provisions. Article 79(4) limits access to file to the parties
concerned.
Also,  pursuant  to  Article  84  of  the  DSA,  information  covered  by  professional  secrecy
submitted to the Commission in the context of this Regulation cannot be disclosed to the
public.
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
confidential.
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 DSA would
lead  to  a  situation  where  undertakings  which  could  be  subject  to  investigations  and
potential informants and complainants would lose their trust in the Commission's reliability
and in the sound administration of DSA 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  DSA.
Consequently, the effective enforcement of the DSA would be undermined.
It thus follows that Document 6 is covered by a general presumption of non-disclosure of
documents in DSA case-files.
In view of the foregoing Document 6 is manifestly covered in its entirety by the exception
set out in Article 4(2), first 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.
Document 6 was  drawn up by the Commission  and contains information relating  to  the
enforcement  and  implementation  of  the  DSA  and  DMA.  It  contains  preliminary
assessments  of  the  facts  and  other  information  from  which  the  direction  of  the
investigations, the future procedural steps which the Commission may take, as well as its
investigative strategy may be revealed to the public. Public disclosure of this document
would expose the Commission and its services to undue external pressure, hence reducing
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its  independence  and  its  margin  of  manoeuvre.  This  information  could  easily  be
misinterpreted  or  misrepresented  as  indications  of  the  Commission's  possible  final
assessment.  Such  misinterpretations  and  misrepresentations  may  cause  damage  to  the
reputation  and  standing  of  the  undertakings  concerned  and  would  clearly  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.
Therefore,  the  exception  set  out  in  Article  4(3),  first  paragraph  of  the  Regulation  is
manifestly applicable to this document.
Furthermore, the Court recognized in Odile Jacob9 and EnBW10, applicable also here by
analogy, that there is a general presumption of non-disclosure of internal documents during
the  procedure  as  that  would  seriously  undermine  the  Commission's  decision-making
process.
In  view  of  the  foregoing,  Document  6  is  also  manifestly  covered  in  its  entirety  by  the
exception related to the protection of the Commission's decision-making process, set out
in Article 4(3) of Regulation 1049/2001.
4.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exceptions laid down in Article 4(2) and Article 4(3) of Regulation 1049/2001 apply,
unless there is an overriding public interest in the disclosure of documents. Such an interest
must, firstly, be a public interest and, secondly, outweigh the harm caused by disclosure.
We have examined whether there could be an overriding public interest in the disclosure
of  the  parts  of  the  documents  which  are  being  withheld  but  we  have  not  been  able  to
identify such an interest.
5.
REUSE OF DOCUMENTS
You may reuse public documents which have been produced by the European Commission
or by public and private entities on its behalf based on the Commission Decision on the
reuse of the Commission documents. You may reuse the part of Document 3 originating
from  the  Commission  and  Documents  4-5  free  of  charge  and  for  non-commercial  and
commercial purposes provided that the source is acknowledged and that you do not distort
the original meaning or message of the documents. Please note that the Commission does
not assume liability stemming from the reuse.
Please note that Documents 4-5 were drawn up for internal use under the responsibility of
the relevant Commission services. They solely reflect the services’ interpretation of the
interventions made and do not set out any official position of the third parties to which the
documents  refer,  which  were  not  consulted  on  their  content.  They  do  not  reflect  the
position of the Commission and cannot be quoted as such.
Documents 1- 2 and parts of Document 3 originate from third parties. Please note that they
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 originators, who

9Odile Jacob, paragraph 130.
10EnBW, paragraph 114.
7

may  hold  an  intellectual  property  right  on  them.  The  European  Commission  does  not
assume any responsibility from their reuse.
6.
CONFIRMATORY APPLICATION
In  accordance  with  Article  7(2)  of  Regulation  1049/2001,  you  are  entitled  to  make  a
confirmatory application requesting the Commission to review this position.
Such confirmatory application should be addressed within 15 working days upon receipt
of this letter to the Secretariat-General of the Commission. You can submit it in one of the
following ways:
by asking for a review via your portal (11) account (available only for initial requests
submitted via the portal account),
or by mail:
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
Roberto Viola
Enclosures:
(6)

(11)  https://www.ec.europa.eu/transparency/documents-request
8
Electronically signed on 06/02/2024 17:47 (UTC+01) in accordance with Article 11 of Commission Decision (EU) 2021/2121

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