Dies ist eine HTML Version eines Anhanges der Informationsfreiheitsanfrage 'Memos, guidance and guidelines on record creation DG COMP'.

1. I received an access to documents request. What do I do?
The first step is to carefully read the request and see first whether it refers to actual documents or just to mere information about our files/
procedures etc.
1.1  Is it access to documents, access to file or just request for information to the public?
Click here for the answer and guidance
If only information is requested, the procedure for access to documents involving R1 does not apply, but you should still send an answer
according to the Code of good administrative behaviour within 15 working days (which may be extended in written by 15 working days).
If the request is about actual documents, then, unless the applicant has specified another legal basis (or has the right to invoke such
alternative legal basis) for requesting access (e.g., access to file, damages directive, loyal cooperation with Member States authorities), it
should be considered as an access to documents request and treated under Regulation 1049/2001 (even if the Regulation is not expressly
Please note that public access to documents under Regulation 1049/2001 is different than access to file for antitrust and merger cases,
notably because of its erga omnes effect. This means that the capacity, legal standing and interests of the requester are irrelevant for
access to documents under Regulation 1049/2001. The idea is that once documents are disclosed to any requester, they are considered
publicly available (even if not necessarily published) and they have to be disclosed to any other requester who may decide to publicise them.
According to the case law, the "purpose of Regulation 1049/2001 is to guarantee access for everyone to public documents and not just
access for the requesting party to documents concerning it" (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).
If the request was received directly by you (or from the Registry, but not marked as access to documents) and not yet registered in the
Gestdem for access to documents requests, you should forward it immediately to COMP ACCESS TO DOCUMENTS for proper registration
and calculation of deadlines.
1.2 What if the request does not mention Regulation 1049/2001?
Click here for the answer and guidance
Even if the request does not expressly refers to Regulation 1049/2001, but asks for access to documents of the Commission, you should
analyse if there is any other legal basis for granting access to those documents to the requester.
If the requester has the right to receive such documents under another legal basis (such as access to file in antitrust and merger cases,
transmission of the non-confidential version of the decision to the complainant etc.), you should confer with the requester and understand the
type of access the requester is looking for and the consequences thereof. For example, it is more likely that an investigated undertaking may
obtain a document under the stricter procedure of access to file with the obligation of not using it for any other purpose than its rights of
defence, whereas under public access to documents, it would not receive such document, because this would mean publicising it to the
If the request was however already registered in Gestdem, you should obtain a written confirmation from the requester that it withdraws the
request under Regulation 1049/2001 and should be further treated under another applicable legal basis.
For further clarifications or in case of doubt, contact the ATD LEGAL TEAM.
2. Which documents are requested?
When documents are requested check the following:
2.1 Is the description of the documents clear enough to help you identify and make an

Click here for the answer and guidance
If not, you can send a request for clarifications to the requester, asking for more details regarding the documents of interest (such as narrower
description, period covered, correspondents etc.) according to the TEMPLATE for requests of clarifications.
The sending out of a clarification request 'stops the clock' until the requester replies with the necessary clarifications. A new deadline to reply
of 15 working days (which may be once extended with 15 working days) will start running from receiving the clarifications reply.
2.2 Does the document exist in the Commission's possession?
Click here for the answer and guidance
You should check the corporate storage devices/ applications and assess whether there are documents to be registered according to SG
criteria and practical guidance
. Always have such Commission documents registered in the case management applications (Natacha/
CMS/ Isis/ CMAfx).

If no document is found, check with the applicable Registry and Archive if it may be retrieved from the archives.
You can also check with the coordination/ horizontal units whether they are aware of any relevant files/ storage where the documents may be
If the document does not exist as such, but its contents/ information sought can be easily retrieved only through automatic means from an
existing Commission database (e.g., a list derived through a simple search in an application), it has to be extracted in a document. This does
not apply to information/ contents from external databases which the Commission is allowed to use for its own activity, as IP rights may apply.
In case of doubt, contact the 
If after all these steps, no document is found, a reply to this effect may be sent according to the 
 for devoid of purpose requests
Be aware that, if a confirmatory request is introduced at SG to reanalyse the initial reply issued by DG COMP, SG will ask for a written
confirmation signed by the Director General that after all searches no such documents were found.
2.3 Is any of the requested documents already public?
Click here for the answer and guidance
If so, access will be given to such public document (either by inserting the link to the website or by attaching the respective document – if
necessary with some redactions). Please note that documents already given in a previous access to documents request to any person are
accessible for the future and considered public. 
If any part of the disclosed documents is redacted, the visa from the 
 in R1 is necessary.
If in addition to the public ones, other documents are requested, follow the analysis below for the remainder of the request.
2.4 Is any of the documents requested older than 30 years?
Click here for the answer and guidance
Documents older than 30 years should in principle be made access ble and the regime and procedure applicable is set forth in Regulation
354/83 concerning the opening to the public of the historical archives of the European Economic Community and the European Atomic
Energy Community, as amended by Regulation 1700/2003 ('Historical Archives Regulation'). However, before releasing documents
covered by professional or business secrecy, the institution has to consult the concerned party or undertaking and take into account their
The Historical Archives Regulation and the case law allow the protection of personal data and of commercial interests from public access to
documents even after 30 years in special circumstances.
Whenever receiving requests for such documents, liaise with R1 and the Archives team for transfer to the Historical Archives. In order to
discuss whether special circumstances apply, consult the 
2.5 Is it about a case (investigation/ pre-notification/ court case/ monitoring etc.) or a
legislative procedure/ policy proposal?

Click here for the answer and guidance
If the documents belong to an administrative investigation carried on by DG COMP (a case), then they might be protected overall, by
applying a general presumption of non-disclosure recognised by the case law with regard to the exception regarding the protection of
investigations. You should undergo the assessment below to check the applicability of a presumption.
If the documents refer to policy projects, contr butions to soft law and legislative proposals, or other consultations not linked to specific
investigations, the answer is not that straightforward and in principle each document requested has to be individually examined to see
whether any protection from disclosure applies.
2.6 Is it about an open case?
Click here for the answer and guidance
For the purpose of access to documents, an open case has an autonomous meaning (as established by the Court) than the mere
administrative stage. A case is considered open as long as the Commission may review it and resume the investigation until definitive
and irrevocable closure. This includes pre-notification formalities, cases where the decision was adopted but the deadline for appeal has not
expired or there are ongoing court procedures, monitoring of commitments/ remedies and recovery decisions etc.
If the documents belong to such an open case, in principle, you may refuse access by using the general presumption of non-disclosure of
documents in pending investigations.
You can use the available TEMPLATES for NEGATIVE REPLIES for each instrument, by adjusting them according to the request at hand
and the applicable exceptions:
-          Antitrust
-          Mergers
-          State Aid

2.7 Is it about a closed case?
2.7.1  Documents exchanged by the Commission with external parties
Click here for the answer and guidance
For merger cases, the 
 judgment has recognised the applicability of the general presumption of non-disclosure to 
between the Commission and other external parties, even when the case is closed, considering the commercially sensitive nature of the
information exchanges and the need to ensure cooperation of the parties in investigations.
Based on this reasoning, DG COMP is applying the general presumption of non-disclosure to documents exchanged with external parties or
(parts of) the documents containing information received from external parties also to closed Antitrust and individual State aid cases
(whenever commercial interests may be invoked). External parties are any persons, entities and Member States which are not part of the EU
For State aid schemes, there is no express case law up-to-date regarding the use of general presumptions, therefore when examining the
request please consult the 
2.7.2  Internal documents in closed cases
Click here for the answer and guidance
The case law is not currently very clear regarding the treatment of internal documents pertaining to closed cases investigated by DG COMP.
Since the MyTravel judgment, the Commission had to undertake an individual examination of the requested documents and provide
explanations on the reasons for applying an exception for disclosure when redactions were made.
The Court has further clarified in the Miettinen judgment that a refusal of a legal opinion may be grounded if the institution proves the
particular sensitivity of such document or the fact that it has a particularly wide scope for other projects beyond that question.
Recent case law of the General Court concerning OLAF investigations goes further and recognises the applicability of a general
presumption of non-disclosure for internal documents
 (without undergoing an individual examination) even in closed cases pertaining to
administrative investigations based on specific procedural regulations (Strack). However, the Court also noted in one of the cases that this
presumption may be used for as long as there are follow-up activities to the investigation (such as national measures) and such activities
occur within a reasonable period (International Management Group). Please consult with the 
 for the applicability by
analogy of this presumption to DG COMP investigations.
2.8 What is a general presumption of non-disclosure and which are its effects?
Click here for the answer and guidance
The general presumption of non-disclosure is a notion established by case law which allows the application of one or several exceptions from
disclosure under Regulation 1049/2001 to documents of a similar category, without having to undergo an individual assessment of each of
such documents. This practically means that it is sufficient to know that the respective type of documents contain information which is covered
by one of the respective exceptions (as recognised by the Court), without checking if such type of information is present in any other
document of the same category (e.g., correspondence with the investigated party).
Applying a general presumption of non-disclosure is a right recognised by the Court for certain circumstances, but not an obligation.
Whenever applying the presumptions of non-disclosure, there is no need to perform an analysis of the contents of the documents, nor to
consult any party or Member State.        
However the general presumptions of non-disclosure have their limits, as the Court mentions that the requester may prove an overriding
public interest for exceptions under Art. 4(2) and (3) of Regulation 1049/2001. In such case, the Commission must undertake a balancing of
the interests (i.e., the protection from disclosure and the specific interest for the public) in order to assess whether the presumption may be
reversed. Up to now, the Court has not given specific criteria for the assessment of the overriding public interest (although mentions the
balancing of interests in the context of requests pertaining to private damage claims), but mentioned that private interests of the applicant
(such as using the respective documents in subsequent litigation or for the rights of defence) do not qualify as overriding public interest.
2.9 What happens if the requested document is the list of the documents in the file?
Click here for the answer and guidance
According to the 
 judgment, partial access should be given to the list of documents in cartel cases, so as not to make impossible or
excessively difficult the right to an effective remedy for damage claimants seeking references to documents which might be useful for their
claims. However, the balancing of interests may run in favour of disclosure of the list of documents only when there has already been a
decision on the case (even if still under appeal), as otherwise the right of damage claims could not be reasonably foreseen as long as no
competition infringement was found.
On the other hand, for State aid cases, the Sea Handling judgment expressly mentions that the applicability of general presumptions of
non-disclosure in State aid and merger cases would also cover the list of correspondence in the file.
Therefore, the case that might prompt in favour of disclosure would be if the requester invoked the need of the list of documents for
supporting a private damage claim against undertakings found in breach of competition rules.
When the list of documents is prepared for disclosure (which is generally the access-to-file list generated by the system), a line-by-line

assessment should be made in order to redact the information covered by the exemptions, such as any personal data, names of undertakings
which were not addressees of the decision, information extracted from leniency or settlement statements etc. The redactions should be in line
with the publication policy for the information to be redacted from the decisions.
2.10 What happens if the document to be disclosed contains personal data?
Click here for the answer and guidance
If it is decided to grant access to a document which contains some personal data (such as names of individuals – be it third party or
Commission staff up to the level of Director, addresses etc.),  the principle is that personal data should be redacted prior to disclosure. The
redaction of personal data should follow the guidance criteria.
The reply should contain the reasoning regarding the redaction of personal data based on the templates provided by SG (depending on
whether the requester is from the EU/ EEA or from a third country/ international organisation), and the reply letter may be signed by the Head
of Unit (as per SG 
2.11 What if it is a classified document?
Click here for the answer and guidance
If the request concerns one or more documents which are classified according to Commission Decision 2015/444 on the security rules for
protecting EU classified information, the request has still to be assessed (unless it falls under a general presumption of non-disclosure), as
classification does not automatically render the document out of scope of Regulation 1049/2001. Please note that the special marking used
by DG COMP and other DGs does not qualify a document as "classified", 
 being only those which bear one of
classified information (EUCI)
the central markings:
The handling of a classified document may be done only with observance of the applicable rules for these types of documents (e.g., access
rights). If following the review, it appears that the document might be disclosed (even if partially), the declassification of the document has to
be requested prior to replying to the access to documents request.
For any questions, please consult with the 
2.12 What happens if it is a disproportionate request?
Click here for the answer and guidance
In case of a request which concerns a very long document or a very large number of documents, article 6(3) of Regulation 1049/2001
indicates that you may confer with the requester in view of finding a fair solution. SG issued guidance on treating such wide requests.
If a fair solution cannot be agreed upon with the requester, you may refer to the proportionality principle to justify a refusal to process the
application on the grounds that this would involve a disproportionate amount of work for the efficient running of the administration.
Whenever dealing with wide-scope requests, please consult with the 
3. Which is the legal deadline to reply?
Click here for the answer and guidance
The initial deadline to reply is of 
 from registration of the application.
15 working days
This deadline may be extended only once with an additional time of 15 working days (calculated from the end of the initial deadline,
irrespective when the extension takes place).
You should send the requester a holding reply (according to the TEMPLATE) to notify him/her of the extension of the deadline and the
reasons therefor.
Failure to reply within the prescribed time limit is deemed a tacit refusal and entitles the applicant to make a confirmatory application at SG to
review such position.
4. Do I need to consult any third parties in view of deciding on the  disclosure
of documents?

Click here for the answer and guidance
If a general presumption of non-disclosure applies, there is no need to consult other parties.
In case the documents originate from a Member State and DG COMP considers the possibility of providing (partial) access to the
documents in question, the respective Member State should be mandatorily consulted. A letter signed by the Head of Unit based on the Mem
ber State consultation TEMPLATE should be sent to the Member State with a copy to the designated representatives in the PermRep

(according to the list provided by SG).
For third-party documents, if DG COMP considers the poss bility of providing (partial) access, it should consult the respective third party,
unless it's clear that the documents may be disclosed or not. In practice, to ensure a safe approach, it is better to consult the third party (if
known) to make sure that no exception under Regulation 1049/2001 may be invoked for refusing to release the document, in full or in part. A
letter signed by the Head of Unit based on the Third party consultation TEMPLATE should be sent by e-mail.
If it is a document emanating from another DG or another EU institution, the practice is that this should be consulted prior to any
For the initial reply, a prima facie assessment is sufficient. This means that, if the third party/ Member State objected to disclosure by invoking
reasons related to one or several exceptions provided by Article 4 of Regulation 1049/2001, DG COMP refuses access to the documents in
question, by invoking the objections received. The Commission can decide to disregard the opposition of a third party at the stage of the
confirmatory application treated by SG.
If the document contains personal data, such data should in principle be redacted, unless the restrictive conditions under Regulation 45/2001
for disclosure (i.e., transfer of personal data) are fulfilled or if there is a consent of the data subject. In the latter case, you need to consult with
the respective individual whether he/she agrees to disclosure of its identity (e.g., in case the originator of the document wants to know the
identity of the requestor).
For further clarifications or in case of doubt, contact the 
5. What types of replies can be given?
Click here for the answer and guidance
If access can be given in full, it's a positive reply which can be sent by e-mail by using the POSITIVE REPLY 
 (including the
applicable disclaimers therein).
If the requested document is one which is normally published after clearance of confidentiality claims (e.g., the non-confidential version of a
decision) and the date of adoption of such document is relatively recent), a reply using the 
 'Decision soon to be published'
be sent and this is not normally considered a negative reply. Please note that the Schenker judgment indicates that at least a meaningful
provisional non-confidential version of a decision should be published after a reasonable time (around 8 months).
If no document are found corresponding to the request, this is treated in the same way as a negative reply based on the TEMPLATE
'Devoid of purpose'
If any parts of the document(s) have to be redacted, then it's a partial negative reply which has to be drafted according to the templates and
obtain the visa from the ATD LEGAL TEAM in R1 prior to signature by the Director General.
If only personal data are redacted and they have not been specifically requested, the reply (according to the TEMPLATES for request from
within EU/EEA or request from third country/ international organisation) may be signed by the Head of Unit (or person replacing him/her).
In case of doubt, contact the 
6. Which is the language of the reply?
Click here for the answer and guidance
In principle, the reply should be sent in the same language of the request, unless there is a waiver received from the requester. When
preparing internally the reply, a working translation into a working language may be necessary in order to obtain the informed endorsement
from the hierarchy in the signataire workflow.
In special circumstances or in case of pressure to comply with the deadline, the reply might be sent in one of the working languages
(generally English) with the special mention to the requester that it may ask for a translation in the language of its request.
In case of doubt, contact the 
7. Which is the applicable procedure in COMP for replies to access
to documents?

7.1   Positive replies
Click here for the answer and guidance
Positive replies, including replies referring to decisions/ documents soon to be published, should include the applicable disclaimers (as
mentioned in the TEMPLATE) and may be signed by the Head of Unit.
They may be sent out directly by e-mail by the case handler/ functional mai box/ relevant Registry, with a copy to COMP ACCESS TO
DOCUMENTS and the relevant Registry.
There is no need for a visa from R1, nor other formality.

7.2   Negative replies (or equivalent)
Click here for the answer and guidance
Negative or partly negative replies to access to documents requests should be signed by the Director General.
Once the reply is drafted it should undergo the approval workflow (including case handler, director, visa from the Access to Documents
Legal Team in R1 and Administrative Assistant of the Director General). The electronic signataire is in the process of being introduced for the
validation. Until then, the circulation list should be used.
Unit R1 (contact: 
) gives 
 by e-mail to draft negative or partly negative replies, before the signataire is
electronic visa
circulated with the hierarchy, so that uniform application of Regulation 1049/2001 is ensured.
The signataire (or the attachments to the validation e-mail) should include:
the draft negative reply, as approved by the 
 in R1,
the initial request for documents (including any clarifications received),
the e-mail with the visa from R1 on the draft negative reply,
the standard form of postal acknowledgment of receipt (accusé de reception), duly filled in and also mentioning the GestDem
number, according to the 
, the following instructions from the SG should be followed:
sending the replies
The paper version of the reply signed by the Director General should be sent by the case team (or by the relevant instrument registry,
if this is the established procedure) by registered mail with acknowledgment of receipt (the acknowledgment form specifically
mentioning the Gestdem number).
Documents for which (partial) access has been granted (as referred to in the reply) are transmitted by e-mail only.
It is preferable to send, in advance of sending the registered mail, a scanned copy of the (partially) negative reply (as signed by the
Director General) via email where an email address is available (please use the standard cover message).
For more details, please contact COMP ACCESS TO DOCUMENTS.
8. Which are the possibilities of further review of the reply issued by DG
COMP? What is a confirmatory application?

Click here for the answer and guidance
In case DG COMP sends a (partial) negative reply or equivalent, including if no documents exist or are found or DG COMP has not replied
within the legal deadline, the requester may file to SG a confirmatory application (which is a request of administrative review).
SG will assess the application and generally consults with the DG in question in view of providing the answer which is then adopted as a
Commission decision (including consultation of the Legal Service). Only the decision adopted by SG may be challenged in Court or in front of
the Ombudsman.
9. What do I do when SG asks for the case team contribution for a  confirmatory

Click here for the answer and guidance
When receiving a confirmatory application, SG usually asks COMP ACCESS TO DOCUMENTS to be put in contact with the case team.
The standard message from SG asks for a couple of information and the approach for DG COMP case handlers to reply should in principle
be the following:
The list of documents requested and copies of the documents
If the reply issued by DG COMP used the general presumption of non-disclosure, there is no need to list or attach the documents as they are
all covered by the presumptions recognised by the case law (and thus no individual analysis is necessary).
The name of case handlers
SG refers to the person(s) having actually drafted (and participated in the drafting of) the COMP reply to access to documents and not to the
case handlers having originally dealt with the case on the substance. Most of the time, these are the same persons, but they may be different
in case the team changed or initial case handlers are no longer working on that.
Arguments for replying to the aspects put forward by the requester in the confirmatory application
If the requester added other grounds or substantiated the initial ones, the case handler should provide a brief bullet list by e-mail of specific
answers to such grounds.

Positive reply
Negative reply
-          Antitrust
-          Mergers
-          State Aid
Personal data redacted: request from within EU/EEA or request from third country/ international organisation
Letter to MS - Art.4 (5) Reg.1049/2001 - EN / 
 (NB: When consulting the Member State, also copy the persons in charge from the
respective PermRep, according to this list provided by SG)
Letter to MS - Art.5 - consultation (NB: When replying to a consultation from the Member State, copy the persons in charge from the
respective PermRep, according to this list provided by SG)
Third Party Consultation Art. 4(4) letter
Decision soon to be published
Letter "Document cannot be found" (considered as a negative reply)
Holding reply
Applicant has to pay for copies
Commission will give access to your document
Request for clarification
Request for postal address
Cover e-mail for negative replies
Signataire circulation list
SG Guidance: Standard Answer regarding Legal Basis for Postal Address (only if requested by applicant)
SG Templates (in all EU languages): please check these against DG COMP specific templates and contact COMP ACCESS TO
DOCUMENTS in case of doubt
Legal Framework
Relevant parts of the TFEU and Charter of Fundamental Rights
Regulation n°1049/2001 (All linguistic versions)
1049 Implementation Decision
MoU between the EP, Council and COM
Member States Legislation
Federal Trade Commission - FOIA
Europa page on Access to Documents
SG Access to Documents intranet page
Flow Chart Guidance Steps in the Procedure
Applicable Exceptions: Flow Chart Guidance
Case law overview by the SG: general access to documents
Case Law Overview - access to lists of documents in the files
Comments to the Ombudsman - Private Enforcement in AT cases
SG Note - "Handling of applications for public access to documents" (21/01/2011)
 EDPS Note  - Public access to documents containing personal data after the Bavarian Lager ruling (25/03/2011)SG's Guidance on
documents in Infringment
Note of the SG - Access to old documents (05/04/2010)
 Speech of Isabelle Bénoliel on 26/06/2015 -  Transparency and confidentiality in competition investigations (speech - slides)
 Commission's Annual Report on Access to Documents 2015 (including 
Annex with statistics
Court cases
Regulation 1049/01 has been already tested in the courts. Moreover, before the adoption of the Regulation, the right of public to access to
Commission documents was governed by Decision 94/90. Case law relating to Decision 94/90 therefore is relevant to many of the underlying

Reception of the request
The request can be received through the SG, or directly received in COMP by the Registry or the case team.
Through the SG
Additional information
Registration of the request in GESTDEM, 
An alert is sent to COMP ACCESS TO DOCUMENT  with Subject : "Gestdem
and attribution to COMP
YYYY = year
NNNN = sequential number
Name = Name of the requester
ATT = code for attribution
The deadline is set to 15 working days

SG sends an Acknowledgement of receipts to
the requester
Directly in COMP
Additional information
Registry or Case team
Forwarding of the request to COMP ACCESS TO DOCUMENTS
Registration in GESTDEM
The deadline is set to 15 working days
Localisation of the document(s) & Registration
Additional information
Searching of the document
a) on the website
b) in SG Vista
c) elsewhere
Forwards the Alert to the Registry of
If needed, additional information about the document will be added (precise
the relevant instrument
description, link to the document if found in SG Vista, ...).
The deadline is set to 15 working days.
The Registry will register the forwarded
Metadata :
Subject : "Gestdem YYYY-NNNN - Name - ATT"
Category : 
AT : "2.18.1 - Access to Document Request"
M : "2.38.1 - Access to Documents, Request"
SA : "AD - Access to Document"
HT : "1.7.1 - Access to Document Request"
Deadline : 15 working days
Comment : Mention if the Request will be handled by the A2D
Filed in the relevant file (Case, HT or Waiting Room), the team will receive a specific
if Confirmatory request :
Subject : "CONF Gestdem YYYY-NNNN - Name - ATT"
Category : 
AT : "2.18.4 - Access to Document Confirmatory Request"
M : "2.38.3 - Access to Documents, Confirmatory Request"
SA : "ADC - Access to Document Confirmatory Request"
HT : "1.7.4 - Access to Document Confirmatory Request"
If the document is public (available on the website or if it has already been provided in Access to Document), the Reply will be taken in charge by
A2D. In this case, it will be made clear in the Comment of the email alert.
Reply by A2D team
Additional information
Sending of (the link to) the Document to the