link to page 1 link to page 1

EUROPEAN COMMISSION
Competition DG

  The Director General

Brussels, 10 July 2023
COMP/J
Samuel Stolton
Bloomberg
International Press Centre
Boulevard Charlemagne 1
Brussels

ask+request-13173-
xxxxxxxx@xxxxxxxx.xxx

By email only

Subject: EASE 2023/3305 – Your request of 20 June 2023 for access to documents
pursuant to Regulation (EC) No. 1049/2001 relating to a  meeting  between EVP
Vestager and Meta on 19 June.
Dear Sir,
Thank you for your application  of  20  June  2023, registered on the same day under the
above-mentioned reference number,  in which you request access to documents in
accordance with Regulation (EC) No. 1049/20011 ("Regulation 1049/2001").
1.  DOCUMENTS CONCERNED
In your message, you request access to the following documents:
•  All documentation (including but not limited to: general communications of any
nature, written material of any kind, email correspondences, attendance lists,
agendas, background papers, briefing papers, transcriptions of meetings, readouts of
meetings, summaries of meetings, briefings for meetings, etc) concerning EVP
Vestager's meeting with Meta's Mark Zuckerberg and Meta representatives on
Monday June 19, 2023.
The documents you request access to form part of the case file in a pending investigation
under Regulation (EU) 2022/19252  (the Digital Markets Act, hereinafter the ‘DMA’), in
which no final decision has yet been adopted by the Commission.

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  Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on
contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU)
2020/1828 (Digital Markets Act), OJ L 265 of 12.10.2022, p. 1.

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.
We have,  however,  identified the following documents that relate to EVP Vestager's
meeting with Meta's Mark Zuckerberg and Meta representatives on Monday June 19, 2023
and which can be shared with you to a certain extent:
1)  Ares(2023)3572273: exchange related to setting up the meeting;
2)  The minutes of this meeting.
With regard to the document listed above, a complete disclosure 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 it contains 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.

Article 9(1)(b) of the Data Protection Regulation (Regulation 2018/1725) 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
transmit ed 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 think that the legitimate interests of the
individuals concerned would not be prejudiced by disclosure of the personal data
concerned.
Document  2  was redacted based on Article  4(2), third indent of Regulation (EC) No
1049/2001, which allows the Commission to refuse access to a document where its
disclosure would undermine the protection of the purpose of inspections, investigations
and audits. The redacted sentence is redacted  to the protection of the purpose of the
Commission's on-going DMA investigation.
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.

2

link to page 3 link to page 3 link to page 3 link to page 3 link to page 3 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.
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.
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 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.
Based on the same  reasoning, the Court recognized in Agrofert7  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.
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

3  Case C-404/10 P, Commission v Odile Jacob, ECLI:EU:C:2012:393.
4  Case C-139/07 P, Commission v Technische Glaswerke Ilmenau, ECLI:EU:C:2010:376.
5  Case C-28/08 P, Commission v Bavarian Lager, ECLI:EU:C:2010:378.
6  Cases C-514/07 P,  C-528/07 P and C-532/07 P,  Sweden and Others v API and Commission,
ECLI:EU:C:2010:541.
7  Case C-477/10 P, Commission v Agrofert Holding, ECLI:EU:C:2012:394, paragraph 59.

3

link to page 4 link to page 4 link to page 4 link to page 4 link to page 4 (antitrust cases), would undermine the purpose of the access system introduced by
Regulations No 1/2003 and 773/20048.
As ruled by the Court of Justice in the Agrofert case9 for merger proceedings, and by the
General Court in the Bitumen  case10  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  recent  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
pending11.
The same reasoning used in the previously 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 documents exchanged between the
Commission and notifying and other (third) parties in the enforcement of the DMA and
preparation of enforcement, given that this Regulation contains very similar provisions as
regards both the obligation of professional secrecy and the access to file procedure12. If
documents in the DMA case files were to be disclosed under Regulation 1049/2001 to
persons other than those authorised to have access to them according to the DMA, the
procedural scheme 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 DMA 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 DMA  proceedings, and this
presumption  applies regardless of whether the request for access concerns DMA
proceedings which have already been closed or proceedings which are pending.
Natural and legal persons submitting information in the context of the DMA  have a
legitimate expectation that –  apart from the publication of the non-confidential
summaries provided for in Articles 8(6) and 18 (5) and (6) of the DMA and of the non-

8  Case C-365/12 P,  Commission v EnBW Energie Baden-Württemberg,  ECLI:EU:C:2014:112,
paragraph 88.
9  Agrofert, paragraphs 61-63.
10  Case T-380/08, Netherlands v Commission, ECLI:EU:T:2013:480, paragraphs 32-40
11  Case T-214/21, Múka v Commission, ECLI:EU:T:2022:607, paragraphs 44 and 55.
12  See, in this regard, Articles 34(4) and 36 of the DMA.

4

confidential versions of final decisions  pursuant to Article 44 of the DMA  –  the
information they supply to the Commission on an obligatory or voluntary basis under the
DMA will not be publicly disclosed.
One of the documents you requested (documents  6)  and 7)  above)  contains information
extracted from a number of antitrust and DMA case files which 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 involved undertakings whose public disclosure would undermine the latters' commercial
interests. This information concerns in particular commercial strategies. Disclosure of this
document could bring serious harm to the undertakings' commercial interests.
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.
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 Regulation
1/2003 and the  DMA,  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 antitrust and DMA  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 Articles 101 and 102 TFEU and the DMA. Consequently,
the effective enforcement of these legal provisions would be undermined.
It thus follows that the requested document  is  covered  in its entirety by  the  general
presumption of non-disclosure of documents in both antitrust and DMA investigations.
In view of the foregoing the requested document is  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, the document  in question contains information which has  been
gathered or drawn up by the Commission in order to take decisions on the compliance
with Articles 101 and 102 TFEU and with the DMA. Since the decisions have not yet
been taken, public disclosure of the requested document would 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 document 2), access to which is requested.

5

link to page 6 link to page 6 Furthermore, the Court recognized in Odile Jacob13 and EnBW14, 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, the requested document is 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.
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.
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 document 2), for which
access has been denied  in accordance with Article 4 (6) of Regulation 1049/2001.
However, 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 letter, 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.

13  Odile Jacob, paragraph 130.
14  EnBW, paragraph 114.

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

7

Document Outline