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EUROPEAN COMMISSION
Competition DG

  The Director General

Brussels, 22 August 2023
COMP/J
Samuel Stolton
Bloomberg
International Press Centre
Boulevard Charlemagne 1
Brussels

ask+request-13280-
xxxxxxxx@xxxxxxxx.xxx

By email only

Subject: EASE 2023/4143 – Your request of 14 July 2023 for access to documents
pursuant to Regulation (EC) No. 1049/2001 relating to a meeting between cabinet
members and Apple, Amazon and Meta.
Dear Sir,
Thank you for your application of 14 July 2023, registered on the same day under reference
number EASE 2023/4143, 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: attendance lists, agendas, briefing
papers, and detailed minutes) concerning Liliane Giardino-Karlinger and Michele
Piergiovanni's meeting with Apple representatives on 27/06/2023.
-  All documentation (including but not limited to: attendance lists, agendas, briefing
papers, and detailed minutes) concerning Liliane Giardino-Karlinger and Michele
Piergiovanni's meeting with Amazon representatives on 21/06/2023.
-  All documentation (including but not limited to: attendance lists, agendas, briefing
papers, and detailed minutes) concerning Liliane Giardino-Karlinger and Michele
Piergiovanni's meeting with Meta representatives on 19/06/2023.
Related to your request concerning Liliane Giardino-Karlinger and Michele Piergiovanni's
meeting with Meta representatives on 19/06/2023, please note that this meeting was actually
with  Executive Vice-President of the European Commission (EVP)  Margrethe  Vestager.

1  Regulation (EC) No  1049/2001 regarding public access to European Parliament, Council and
Commission documents, OJ L 145, 31.5.2001, p. 43

Commission européenne, B-1049 Bruxelles / Europese Commissie, B-1049 Brussel - Belgium

link to page 2 link to page 2 You have already received the relevant documents on 10 July 2023 following your access to
document request registered under reference number EASE 2023/3505.
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.
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, furthermore, identified the following documents that relate to Liliane Giardino-
Karlinger and Michele Piergiovanni's meeting with Apple representatives on 27/06/2023,
and  their meeting with Amazon representatives on 21/06/2023  and which can be shared
with you to a certain extent:
1)  Ares(2023)4238617:  Exchange  related to setting up the meeting  with Apple on
27/06/2023;
2)  Ares(2023)4812604: The minutes of this meeting;
3)  Ares(2023)1846600, Ares(2023)4908720  and  Ares(2023)3642290:  Exchanges
related to setting up the meeting between Amazon and EVP Vestager on
21/06/2023;
4)  Ares(2023)4909258: The minutes of this meeting.
With regard to the documents  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 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 Regulation No 2018/17253  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.

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, 12.10.2022, p. 1.
3  Regulation 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, OJ L 295, 21.11.2018, p. 39.

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link to page 3 link to page 3 link to page 3 link to page 3 Consequently, I  conclude that, pursuant to Article 4(1)(b) of Regulation 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 4 was redacted based on Article 4(2), third indent of Regulation 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 sentences are redacted to the protection of the purpose of the Commission's on-
going antitrust and DMA investigation.
2.  APPLICABLE EXCEPTIONS
Article 4(2), first indent, protection of commercial interests of Regulation 1049/2001
Article 4(2), third indent, protection of the purpose of investigations  of Regulation
1049/2001
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.
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 Jacob4, the Court of Justice of
the European Union 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 of Justice further ruled that, by analogy to the case law in cases TGI5,
Bavarian Lager6 and API7, 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 of Justice referred in particular to the EU Merger Regulation and

4  Judgment of 28 June 2012, Commission v Odile Jacob, C-404/10 P, ECLI:EU:C:2012:393.
5  Judgment of 29 June 2010, Commission v Technische Glaswerke Ilmenau,  C-139/07 P,
ECLI:EU:C:2010:376.
6  Judgment of 29 June 2010, Commission v Bavarian Lager, C-28/08 P, ECLI:EU:C:2010:378.
7  Judgment of 21 September 2010, Sweden and Others v API and Commission, Joined Cases C-514/07
P, C-528/07 P and C-532/07 P, ECLI:EU:C:2010:541.

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link to page 4 link to page 4 link to page 4 link to page 4 link to page 4 link to page 4 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 of Justice 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 of Justice
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 of Justice recognized its judgment in Case C-
477/10 P, Agrofert8, 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 its judgment in Case C-365/12 P, EnBW9, 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 1/200310 and 773/200411.
As ruled by the Court of Justice in the Agrofert case12 for merger proceedings, and by the
General Court its judgement in the in the Bitumen case13 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 its recent judgment in Case T-214/21, Múka, the General Court recalled
that,  as interested parties other than those directly concerned in State aid control

8  Judgment of 28 June 2012, Commission v Agrofert Holding,  C-477/10 P,  ECLI:EU:C:2012:394,
paragraph 59.
9  Judgment of 27 February 2014, Commission v EnBW Energie Baden-Württemberg, C-365/12 P,
ECLI:EU:C:2014:112, paragraph 88.
10  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on
competition laid down in Articles 81 and 82 of the Treaty, OJ L 1, 4.1.2003, p. 1.
11  Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by
the Commission pursuant to Articles 81 and 82 of the EC Treaty, OJ L 123, 27.4.2004, p. 18.
12  C-477/10 P, paragraphs 61-63.
13  Judgment of 13 September 2013, Netherlands v Commission  (Bitumen),  T-380/08,
ECLI:EU:T:2013:480, paragraphs 32-40

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link to page 5 link to page 5 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 pending14.
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 procedure15. 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-
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 (document 4) 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 latter’s' 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

14  Judgment of 5 October 2022, Múka v Commission, T-214/21, ECLI:EU:T:2022:607, paragraphs 44
and 55.
15  See, in this regard, Articles 34(4) and 36 of the DMA.

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link to page 6 link to page 6 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 of Regulation 1049/2001
Pursuant to Article 4(3) of Regulation 1049/2001, 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 4, access to which is requested.
Furthermore, the Court of Justice recognized  in its judgments in  Odile Jacob16  and
EnBW17,  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.

16  C-404/10 P, paragraph 130.
17  C-365/12 P, paragraph 114.

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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 is 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 4, 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.

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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Document Outline