EUROPEAN COMMISSION
Competition DG
The Director General
Brussels,
COMP/D.5/ESO/2023/3251
STOLTON, Samuel
By e-mail: ask+request-13076-
xxxxxxxx@xxxxxxxx.xxx
Subject: EASE 2023/3251 – Your request of 7 June 2023 for access to documents
pursuant to Regulation (EC) No. 1049/2001 relating to Case COMP/M.11111 – UBS
/ CREDIT SUISSE.
Dear Sir,
Thank you for your application of 7 June 2023, registered under EASE number 2023/3251,
concerning Case COMP/M.11111 – UBS / CREDIT SUISSE, in which you request access
to documents in the Commission's administrative file in accordance with Regulation (EC)
No. 1049/2001
1 ("Regulation 1049/2001").
1. DOCUMENTS CONCERNED
In your message you request access to all documents which compose the administrative file
of DG Competition concerning Case COMP/M.11111 – UBS / CREDIT SUISSE, including
but not 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.
The documents you request access to form part of the case file in a merger case concerning
an investigation under the EU Merger Regulation 139/2004
2 (the "Merger Regulation"), in
which the procedure may not be considered finalized yet, as long as the decision adopted by
the Commission is still subject to appeal which might prompt the Commission to reconsider
its decision and reopen the case.
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 Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between
undertakings (the EC Merger Regulation), OJ L 24, 29.01.2004, p. 1-22
Commission européenne, B-1049 Bruxelles / Europese Commissie, B-1049 Brussel - Belgium
Having carefully examined your request in the light of Regulation 1049/2001, 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 the detailed assessment as regards the application of the
exceptions of Article 4 of Regulation 1049/2001.
2. APPLICABLE EXCEPTIONS
Article 4(2), first indent, protection of commercial interests
Article 4(2), third indent, protection of the purpose of investigations
Pursuant to Article 4(2), first indent of Regulation 1049/2001 the Commission shall refuse
access to a document where disclosure would undermine the protection of commercial
interests of a natural or legal person.
Pursuant to Article 4(2), third indent of Regulation 1049/2001 the Commission 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 Jacob3, 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
TGI4,
Bavarian Lager5 and
API6, 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 sets 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.
3 Case C-404/10 P,
Commission v Odile Jacob, [2013] ECR
4 Case C-139/07 P,
Commission v Technische Glaswerke Ilmenau, [2010] ECR I-5885
5 Case C-28/08 P,
Commission v Bavarian Lager, [2010] ECR I-6055
6 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
2
In
Commission v TGI7, 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 a general presumption that disclosure of documents in the file
would undermine the purpose of State aid investigations. The Court reasoned that such
disclosure would call into question the procedural system
8. Based on this reasoning, the Court recognized in
Agrofert9 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
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.
As ruled by the Court in the
Agrofert case
10, if a document is not accessible under the
"access to file procedure", it cannot be made available to the public under Regulation
1049. In essence, the Merger Regulation and Regulation 1049 have different aims but
must be interpreted and applied in a consistent manner. The rules on access to file in the
Merger Regulation 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).
Natural and legal persons submitting information in the context of the Merger Regulation
have a legitimate expectation that – apart from the publication of the Section 1.2 of the
Form CO and of the final decision cleared of business secrets and other confidential
information – the information they supply to the Commission on an obligatory or
voluntary basis under the Merger Regulation will not be disclosed.
Undertakings 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 documents are commercially sensitive,
particularly at a stage where an investigation has not been finally concluded yet.
The documents requested by you, as specified above, are part of the file in a competition
case, which have not been brought into the public domain and are known only to a limited
number of persons. In particular, the documents you request access to contain commercial
and market-sensitive information regarding the activities of the involved undertakings
whose public disclosure would undermine the latters' commercial interests. This information
concerns in particular commercial strategies. Disclosure of these documents could bring
serious harm to the undertakings' commercial interests.
7 See case C-139/07,
Commission v Technische Glaswerke Ilmenau GmbH (TGI)
8 See also Case C-514/07 P,
API v Commission, para. 99 and 100, as well as Case C-404/10 P
Commission v Odile Jacob, paragraphs 108-126 where the Court of Justice applied
Commission v TGI
by analogy to merger proceedings
9 Case C-404/10 P,
Commission v Agrofert Holding, [2013] ECR, paragraph 59
10
Agrofert, paragraphs 32-40
3
Undertakings also have a legitimate interest that the information is used only for the
purposes of the Commission proceedings in application of the Merger Regulation. It is
for this reason that Article 17(1) the Merger Regulation provides that information
acquired through the investigative powers of this regulation is used only for the purpose
for which it was acquired, namely the administrative Commission procedure and the
Court review of the decision resulting from this procedure.
Also, pursuant to Article 17(2) of the Merger Regulation, 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 in this domain has so far created a
climate of mutual confidence between the Commission and undertakings, under which
the latter have cooperated by providing the Commission with the information necessary
for its investigations. Recourse to formal decisions requesting the information (subject to
sanctions) or occurrences of opposition to inspections are indeed rare.
In these circumstances, disclosure despite the protection provided for by the above-
mentioned regulations, would lead to a situation where undertakings subject to
investigations and potential informants and complainants would lose their trust in the
Commission's reliability and in the sound administration of competition 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 EU competition law. Consequently, the purpose of merger
procedures and, implicitly, of the effective enforcement of the EU competition rules
would be undermined.
It thus follows that the requested documents are covered by a general presumption of
non-disclosure of documents in merger case-files.
In view of the foregoing the requested documents are covered by the exception set out in
Article 4(2), first indent and third indent of Regulation 1049/2001.
Article 4(3) protection of the institution's decision-making process
Pursuant to Article 4(3), access to the documents drawn by the Commission or received by
the Commission shall be refused if the disclosure of the documents would seriously
undermine the Commission's decision-making process.
In the present case, all the documents of the case file have been gathered or drawn up by
the Commission in order to take a decision on the compliance with the EU competition
rules. The decision is still subject to appeal which might prompt the Commission to
reconsider its decision and reopen the case. In that case, the public disclosure of any of the
4
requested documents could expose the Commission and its services to undue external
pressure, hence reducing its independence and its margin of manoeuvre. This would
clearly seriously undermine the Commission's decision-making process. Therefore, the
exception set out in Article 4 (3), first paragraph of the Regulation is manifestly
applicable to the documents, access to which is requested.
As mentioned above, the requested documents relate to a merger investigation, of which the
final decision is still subject to appeal, and the requested documents therefore contain
information from which potential future procedural steps which the Commission may take
may be revealed to the public. The disclosure of the requested documents would therefore
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 or potential future
procedural steps free from external pressure.
In view of the foregoing, the requested documents are manifestly covered in their entirety
by the exception related to the protection of the purpose of the Commission's merger
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.
The general presumption recognised in the case-law cited above does not exclude the
possibility of demonstrating that certain documents, of which disclosure is sought, are not
covered by the presumptions. However, you have not demonstrated this in your application.
3. OVERRIDING PUBLIC INTEREST IN DISCLOSURE
Pursuant to Article 4(2) and (3) of Regulation 1049/2001, the exception to the right of
access contained in that Article
must be waived if there is an overriding public interest in
disclosing the documents requested. In order for an overriding public interest in
disclosure to exist, this interest, firstly, has to be public (as opposed to private interests of
the applicant) and, secondly, overriding, i.e. in this case it must outweigh the interest
protected under Article 4 (2), first and third indent, and 4 (3) of Regulation 1049/2001.
According to the
Agrofert11 judgment
, the abovementioned general presumptions do not
exclude the right for the applicant to demonstrate the existence of an overriding public
interest justifying the disclosure of the documents requested.
In your application you have not established arguments that would present an overriding
public interest to disclose the documents to which access has been hereby denied.
Consequently, the prevailing interest in this case lies in protecting the effectiveness of the
Commission’s merger investigations, its decision-making process and the commercial
interests of the undertakings concerned.
11
Agrofert, paragraph 86
5
4. PARTIAL ACCESS
In accordance with Article 4 (6) of Regulation 1049/2001, I have also considered the
possibility of granting partial access to the sections of the concerned documents.
Part of the administrative file to which you have requested access is already in the public
domain. These documents correspond to Section 1.2 of the Form CO in case
COMP/M.11111 and a press release at the time of the Commission’s decision, both of
which are accessible in DG Competition’s public case register under the case number
M.11111. Further, a non-confidential version of the Commission decision will also be
published in due course in DG Competition’s case register under the case number
M.11111. All of these documents can be consulted at the following link:
https://ec.europa.eu/competition/elojade/isef/case details.cfm?proc code=2 M 11111,
and you are invited to check it regularly in order to remain aware of any further
developments.
I therefore refer you to this publicly accessible link, in line with Article 10(2) of
Regulation 1049/2001.
However, as far as the other sections of the requested documents submitted by the
notifying parties are concerned, the general presumption recognised by the Court in
Odile Jacob applies. Therefore, no access to those other sections of the documents will
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
documents or confirming the refusal. In the lat er case, you will be informed of how you can
take further action.
6
All correspondence should be sent to the following address:
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,
(e-signed)
Olivier GUERSENT
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