EUROPEAN COMMISSION
Competition DG
The Director General
Brussels, 31 May 2023
COMP/A2
Mr Bram VRANKEN
Corporate Europe Observatory
Rue d'Edimbourgh 26, 1050 Brussels
Belgium
By email:
xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxx.xxx
Subject:
Your application for access to documents 2023/1931
Dear Mr Vranken,
We refer to your request for access to European Commission documents registered on 28/03/2023
under the above-mentioned reference number.
1. DOCUMENTS CONCERNED
You request access to
[a]ll documents - including but not limited to e-mails, reports, minutes, etc. -
starting from 01/01/2020 related to meetings between DG Competition and the following four
stakeholders: RBB Economics, Compass Lexecon, Charles River Associates International and
Oxera.
I consider your request to cover documents held up to the date of your initial application, i.e.
21/03/2023
.
Insofar your request concerns documents which are part of the administrative file of the
Commission concerning Merger, Antitrust or State aid investigations, 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. Please find below, under C – Case
related documents, the detailed assessment as regards the application of the exceptions of Article 4 of
Regulation 1049/2001 to that category of documents.
Outside of the category of case-related documents, regarding meetings with Compass Lexecon and
Oxera, we regret to inform you that the Commission does not hold any documents that would
correspond to the description given in your application.
As specified in Article 2(3) of Regulation (EC) No 1049/2001, the right of access as defined in that
regulation applies only to existing documents in the possession of the institution.
Given that no such documents, corresponding to the description given in your application, are held
by the Commission, the Commission is not in a position to fulfil your request.
Regarding meetings with RBB Economics (‘RBB’) or Charles River Associates International (‘CRA’),
your application concerns the non-case-related documents listed in the annexed files entitled ‘Annex 1
– List of documents – RBB’ and ‘Annex 2 – List of documents – CRA’ detailing the reference Ares,
author, addressee, date and title (or, if a title is not available, the subject).
2. DETAILED ASSESSMENT AND APPLICABLE EXCEPTIONS
The documents listed in the annexed files have been classified as either (A) marked as
redacted/disclosed or (B) marked as non-redacted/non-disclosed, depending on whether partial access
can, or cannot, be granted.
The detailed assessment of case related documents is provided under section C below.
A - Documents marked as redacted/disclosed
Having examined the documents requested under the provisions of Regulation (EC) No 1049/2001
regarding public access to documents, I have come to the conclusion that documents marked as
redacted/disclosed in the annexed files above may be partially disclosed.
With regard to the documents commented in the annexed files mentioning ‘personal data’, a complete
disclosure of the identified documents 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 they contain any of the following personal data:
-
the names/initials and contact information of Commission staff members not pertaining to the
senior management;
-
the names/initials and contact details of other natural persons;
-
handwritten signatures/abbreviated signatures of natural persons;
-
other information relating to an identified or identifiable natural person.
Article 9(1)(b) of the Data Protection Regulation1 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) of Regulation (EC) No 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
1 Regulation (EU) 2018/1725 of 23 October 2018 on the protection of natural persons with regard to the processing of
personal data by the Union institutions, PE/31/2018/REV/1, OJ L 295 of 21.11.2018.
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think that the legitimate interests of the individuals concerned would not be prejudiced by disclosure of
the personal data and the commercially sensitive information concerned.
With regard to the documents commented in the annexed files mentioning ‘commercially sensitive
information’, some parts of these documents have been blanked out as their disclosure is prevented by
the exception to the right of access laid down in the first item of Article 4(2) Regulation (EC) No
1049/2001.
The redacted parts of these documents contain commercially sensitive business information of the
company that submitted it, including information relating to any of the following: methodologies,
know-how, specific pricing, breakdown of contractual execution timetables, involvement of experts or
partners, information on detailed operational aspects, business strategies, detailed description of the
proposed actions or other information including information carrying commercial value.
Disclosure of these parts relating to the execution of a procurement contract would undermine the
protection of the contractor’s expertise, know-how, strategy and creativity and thus their commercial
strength, as it could be used by competitors in future similar procedures, to the detriment of the
contractor concerned.
Therefore, I conclude that, pursuant to the first item of Article 4(2) of Regulation (EC) No 1049/2001,
access cannot be granted to the commercially sensitive information contained in the requested
documents. The exceptions laid down in Article 4(2) of Regulation (EC) No 1049/2001 apply unless
there is an overriding public interest in disclosure of the documents. I have examined whether there
could be an overriding public interest in disclosure of the specific commercially sensitive information
and have not been able to identify such an interest.
Please note that certain documents are preliminary drafts, which do not reflect the position of the
Commission and cannot be quoted as such.
Please note that the documents are part of a study carried out by external experts. They do not reflect
the position of the Commission and cannot be quoted as such.
Please note that documents originating from third parties 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 intellectual property right on them. The European Commission does
not assume any responsibility from their reuse.
B - Documents marked as non-redacted/non-disclosed
Having examined the documents requested under the provisions of Regulation (EC) No 1049/2001
regarding public access to documents, I regret to inform you that your application cannot be granted
for documents marked as non-redacted/non-disclosed in the annexed files above. Disclosure of these
document is prevented by exceptions to the right of access laid down in Article 4 of this Regulation.
Disclosure of the non-redacted/non-disclosed documents commented in the annexed files mentioning
‘document contains personal opinions’, ‘commercially sensitive information’, and/or document ‘is
subject to the exception under Article 4(3) Regulation 1049/2001/investigation exception’ is prevented
by the corresponding exceptions of the right of access laid down in Article 4.
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These comments mean that the documents which you seek to obtain:
-
contain personal information of officials or of external experts in the form of personal opinions
for internal use as part of preliminary deliberations; or
-
contain commercially sensitive business information of the company that submitted it; or
-
relate to a decision which has not yet been taken by the Commission and/or contain opinions
for internal use as part of deliberations and preliminary consultations;
Therefore, disclosure of the documents requested would undermine respectively the protection of:
-
officials or of external experts personal interpretation of facts or acts expressed for internal use
as part of preliminary deliberations which could be detrimental to their reputation, dignity and
honor, and that does not set out any official position of the institution or of third parties; or
-
the commercial interests of the company that submitted the commercially sensitive
information, as putting it in the public domain would affect the company’s competitive position
on the market. More specifically, these documents contain information relating to industry
specific study methodologies, professional intellectual product know-how, breakdown of
contractual execution timetables, scope/purpose/methodology of experts involvement,
information on detailed operational aspects of the execution of the contract, business strategies
in implementation of European Commission requests, detailed description of the proposed
actions in response to the European Commission comments. In other words, disclosure of these
documents relating to the execution of a procurement contract would undermine the protection
of the contractor’s expertise, know-how, strategy and creativity and thus their commercial
strength, as it could be used by competitors in future similar procedures, to the detriment of the
contractor concerned.
-
the decision-making process of the Commission in relation to (a) the completion of the on-
going RBB study on the “Commission Assessment of Future Market Entry, Expansion and
Imports in EU Merger Decisions”, and (b) the policy enforcement decisions following the
finalized CRA study in the electric vehicle recharging market, as it would reveal preliminary
views and policy options which are currently under consideration. More specifically:
a) in the current state of completion of the on-going RBB study, there are several
decisions still to be discussed internally by the Directorate-General on a number of
issues (including but not limited to: study methodologies, exact list of decisions and
part of decisions proposed for
ex post evaluation, scope and extent of the involvement
of independent experts). Disclosure of the non-redacted/non-disclosed documents
would create a serious risk undermining the decision-making process, whereas the
Commission's services must be free to explore all possible options in preparation of a
decision, free from external pressure. Therefore the exception laid down in Article 4(3)
first subparagraph of Regulation (EC) No 1049/2001 applies to these documents.
b) disclosure of the non-redacted/non-disclosed documents drawn up in the context of the
study on the electric vehicle recharging market would reveal key issues, assessment
methodologies, analytical techniques and enforcement policy options which the
Commission is still in the process of analysing. The disclosure of these documents
could seriously undermine this process by opening it to undue external influence or
4
pressure. In addition, the disclosure would provide entities active in this market and
adjacent markets that would be subject to future investigations, should the
Commission decide to launch such investigations, with undue insights into our
methodological approaches and analytical techniques, thereby providing them with
the ability to adjust or conceal some of their possible conducts accordingly.
Moreover, disclosing the non-redacted/non-disclosed documents could foster
misinformation and speculative interpretations, which may unnecessarily disturb the
market dynamics. Therefore the exception laid down in Article 4(3) first subparagraph
of Regulation (EC) No 1049/2001 along with the investigation exception applies to
these documents.
C – Case related documents
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.
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 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 and
API5,
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.
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 773/20046.
2 Case C-404/10 P,
Commission v Odile Jacob, [2013] ECR
3 Case C-139/07 P,
Commission v Technische Glaswerke Ilmenau, [2010] ECR I-5885
4 Case C-28/08 P,
Commission v Bavarian Lager, [2010] ECR I-6055
5 Cases C-514/07 P, C-528/07 P and C-532/07 P,
Sweden and Others v API and Commission,
[2010] ECR 1-8533
6 Case C-365/12 P Commission v EnBW Energie Baden-Württemberg, judgment of 27 February
2014, paragraph 88
5
A similar general presumption of confidentiality based on article 4§2 covers the documents which
are part of the administrative file of the Commission related to State aid investigations. In the recent
Muka7
judgment, a case which concerned an access to documents request in two closed State Aid
investigations, the General Court stated that ‘the general presumption of non-disclosure concerning
the documents relating to the Commission’s administrative file resulting from a State aid control
procedure applies regardless of whether the request for access concerns a control procedure which
has already been closed or one which is pending’ 8.
In view of the foregoing, insofar they are part of the case related documents category, the requested
documents are manifestly covered in their entirety by the exception related to the protection of the
purpose of the Commission's Competition investigations set out in Article 4(2), third indent of
Regulation 1049/2001.
3. OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exceptions laid down in Article 4(2) and 4(3) of Regulation (EC) No 1049/2001 apply unless there
is an overriding public interest in disclosure of the documents. I have examined whether there could be
an overriding public interest in disclosure of the specific personal opinions, the commercially sensitive
information as well as the information capable to seriously undermine the decision-making
process/investigations of the Commission and have not been able to identify such an interest.
4. PARTIAL ACCESS
We have considered whether partial access could be granted to the documents requested. However, for
the reasons explained above, no meaningful partial access is possible without undermining the
interest described above and the information contained therein which could be made public would
be of no substantial value as it is already of public knowledge.
I am aware that if a document contains information which is already in the public domain, this does not
in principle justify a refusal of partial access, but instead requires its partial disclosure 9. However,
pursuant to settled case-law, in exceptional circumstances:
‘a derogation from the obligation to grant partial access might be permissible where the administrative
burden of blanking out the parts that may not be disclosed proves to be particularly heavy, thereby
exceeding the limits of what may reasonably be required10’.
The General Court further held in the same judgment that:
7
See case T-214/21,
Ondrej Muka v Commission
8
See case T-214/21,
Ondrej Muka v Commission, paragraph 55. See also, by analogy, the
Agrofert and
Deutsche Telekom judgments quoted therein
9
Judgment of the Court of First Instance of 30 January 2008, Terezakis v European
Commission, T-380/04, EU:T:2008:19, paragraph 101.
10
Judgment of the Court of First Instance of 7 February 2002, Kuijer v Council of the
European Union, T-211/00, EU:T:2002:30, paragraph 57.
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‘[…] The principle of sound administration requires that the duty to grant partial access should not
result in an administrative burden which is disproportionate to the applicant's interest in obtaining that
information11’.
In this instance, I note that, in the framework of your application, you do not contest the particularly
heavy workload which would be entailed by partial disclosure of the documents requested, nor the fact
that the information that would be disclosed would not be of any substantial value as it is already
publicly known12.
Consequently, I have come to the conclusion that, in order to safeguard the principle of sound
administration, the documents cannot be partially disclosed under Regulation (EC) No 1049/2001.
Indeed, the administrative burden engendered by implementing such partial access would not weigh up
against your possible interest in obtaining the (already public) information contained in the parts that
would remain unredacted.
The exceptions laid down in Article 4(2) and 4(3) of Regulation (EC) No 1049/2001 apply to the entire
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.
Finally, you will also find within the category of documents “non-redacted/non/disclosed” a number of
transmission emails (identified as “Cover email – no substantive content”), which do not contain any
material information not already contained in the list of documents or in the attachments they transmit,
apart from personal data that would need to be redacted prior to the disclosure for the reasons
explained above. As these messages do not have any substantive content, I assume that they are of no
interest to you. Should that not be the case, please let me know.
5. MEANS OF REDRESS
In accordance with Article 7(2) of Regulation (EC) No 1049/2001, you are entitled to make a
confirmatory application requesting the Commission to review this position.
Such a confirmatory application should be addressed to the Secretariat-General of the Commission
within 15 working days upon receipt of this letter. You can submit it in one of the following ways:
by asking for a review via your portal13 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
11 Judgement of the Court of First Instance of12 July 2001,
Mattila v
Council of the European Union and European
Commission, T-204/99, EU:T:2001:190, paragraph 69.
12 See the Procurement documents for the “Commission Assessment of Future Market Entry, Expansion and Imports in
EU Merger Decisions” awarded to RBB availab
le here; and the study entitled “Competition analysis of the electric
vehicle recharging market across the EU27 + the UK” prepared by Charles River Associates availab
le here. 13 https://www.ec.europa.eu/transparency/documents-request
7
B-1049 Bruxelles
or by email to: xxxxxxxxxx@xx.xxxxxx.xx
Yours faithfully,
(e-signed)
Olivier GUERSENT
Annex(es):
‘Annex 1 – List of documents – RBB’
‘Annex 2 – List of documents – CRA’
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Document Outline