link to page 1 link to page 1
EUROPEAN COMMISSION
Competition DG
The Director General
Brussels, 10/05/2021
COMP/H2/MKP/jj
Lala Hakuma Dadci
Corporate Europe Observatory
Rue d’Edimbourg 26
1050 Brussels
By e-mail
: ask+request-9321-
xxxxxxxx@xxxxxxxx.xxx
Subject: GESTDEM 2021/2269– Your request of 13 April 2021 for access to the
minutes of the meeting of 12 November 2020 between Yizhou Ren and Hydrogen
Europe - Hydrogen Alliance and competition policy pursuant to Regulation (EC)
No. 1049/2001
Dear Madam,
Thank you for your message of 13 April 2021, registered on 13 April 2021 under
GESTDEM number 2021/2269, in which you request access to documents in the
Commission's case file in accordance with Regulation (EC) No. 1049/2001
1 ("Regulation
1049/2001").
1. DOCUMENTS CONCERNED
In your message, you request access to the “
minutes of the meeting of 12 Nov 2020 between
Ms Yizhou Ren (a member of EVP Vestager’s Cabinet) and Business Europe - Hydrogen
Alliance and competition policy (DG A Europe Fit for the Digital Age)”.
The entity that participated to the meeting of 12 November 2020 was Hydrogen Europe.
This reply concerns only the Minutes of the meeting of Members of the Cabinet of EVP
Vestager and the association Hydrogen Europe on 12 November 2020
2.
1 Regulation (EC) N° 1049/2001 regarding public access to European Parliament, Council and
Commission documents, OJ L145 of 31.5.2001, p. 43
2 Separate requests were registered in relation to the documents exchanged by the Cabinets of Vice-
President Jourová, under the reference GESTDEM 2021/2262 and Commissioner Sinkevičius under
the reference GESTDEM 2021/2268.
Commission européenne, B-1049 Bruxelles / Europese Commissie, B-1049 Brussel - Belgium. Telephone: (32-2) 299 11 11.
link to page 2 link to page 2
Please find attached to this letter a copy of the requested document. This document can be
only partially disclosed. The document (minutes) has two parts: one which is not case-
related (you will find a copy of this part in the annex to the present letter) and a second part
which is related to the administrative file of DG Competition concerning Case
COMP/SA.54048 – Preliminary contacts for potential IPCEI(s) on Hydrogen Technologies
and Systems. Therefore, the second part of the document you request access to is part of the
case file in a pending State aid case under Article 107 of the TFEU in which no final
decision has yet been adopted by the Commission.
Having carefully examined your request in the light of Regulation 1049/2001, I have come
to the conclusion that part of the document falls under the exceptions of Article 4 of
Regulation 1049/2001. 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
document(s) 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".
3
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
TGI4, 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
3 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
4 See Case C-139/07 P,
Commission v Technische Glaswerke Ilmenau GmbH
2
link to page 3 link to page 3 link to page 3
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 question
5. This line of reasoning was upheld by the Court in
Sea Handling
even when it comes to a reduced number of documents pertaining to a State aid file
6. The State aid procedural regulations, especially Regulation 2015/1589
7, contains 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 regulation 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, one part of the requested document relates to a pending State aid
investigation and contains a preliminary assessment of the facts and other 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, The requested document would reveal the Commission's
investigation strategy and its disclosure would therefore undermine the protection of the
purpose of the investigation and would also seriously undermine the Commission's decision
making process, especially in case the final decision of the Court would prompt the
Commission to resume the investigation. 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 document requested as far as it concerns Case
COMP/SA.54048 – Preliminary contacts for potential IPCEI(s) on Hydrogen Technologies
and Systems, is manifestly covered 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 C-139/07 P,
Commission v Technische Glaswerke Ilmenau GmbH, paragraphs 58-59
6 See Case T-465/13,
Sea Handling SPA v Commission, paragraphs 55-58 and 61
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
3
link to page 4
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 document are commercially sensitive,
particularly at a stage where an investigation has not been finally concluded yet.
The document requested by you, as specified above, is part of the file in a competition case,
has not been brought into the public domain and is known only to a limited number of
persons. In particular, this document contains commercial and market-sensitive information
regarding the activities of the potential beneficiaries and other third parties, whose public
disclosure would undermine the latters' commercial interests. This information concerns in
particular commercial strategies with regard to hydrogen. Disclosure of this document
could bring serious harm to the undertakings' commercial interests.
In view of the foregoing the case-related part of the requested document is covered by the
exception set out in Article 4(2), first indent of Regulation 1049/2001.
Article 4(1)(b), protection of privacy and the integrity of the individual, protection of
personal data
The document to which you have requested access contains personal data (names of
individuals).
Pursuant to Article 4(1)(b) of Regulation (EC) No 1049/2001, access to a document (or
sections of it) has to be refused if its disclosure would undermine the protection of
privacy and the integrity of the individual, in particular in accordance with European
Union legislation regarding the protection of personal data. The applicable legislation in
this field is Regulation (EC) No 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 (‘Regulation 2018/1725’)
8. Pursuant to Article 9(1)(b) of Regulation 2018/1725, ‘personal data shall only be
transmitted to recipients established in the Union other than Union institutions and bodies
if ‘[t]he recipient establishes that it is necessary to have the data transmitted for a
specific purpose in the public interest and the controller, where there is any reason to
assume that the data subject’s legitimate interests might be prejudiced, establishes that it
is proportionate to transmit the personal data for that specific purpose after having
demonstrably weighed the various competing interests’.
8 OJ L 295 of 21.11.2018, p. 39.
4
In your request, you do not 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) of Regulation 1049/2001,
access cannot be granted to the personal data, 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.
Therefore, we are disclosing the document expunged from personal data.
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 document 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 document 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 document for which
access has been denied in accordance with Article 4(6) of Regulation 1049/2001.
Partial access is granted to the requested document, as set above. However, as regards the
part of that document which concerns Case COMP/SA.54048 – Preliminary contacts for
potential IPCEI(s) on Hydrogen Technologies and Systems, the general presumption of
non-disclosure invoked above also applies to partial disclosure for the document
concerned and, consequently, no partial access can be granted.
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
document or confirming the refusal. In the latter case, you will be informed of how you can
take further action.
5
All correspondence should be sent to the following address:
European Commission
Secretary-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,
Olivier GUERSENT
Enclosed documents:
Copy of 1 document
6
Document Outline