link to page 1

EUROPEAN COMMISSION
Competition DG

   The Director General

Brussels, 20 May 2022
COMP/A1
Mr Schindler
c/o Büro Domscheit-Berg, MdB
Platz der Republik 1
11011 Berlin
Deutschland

By e-mail
ask+request-10900-
xxxxxxxx@xxxxxxxx.xxx
Subject:  GESTDEM  2022/1833  –  Your  request  of  25 March 2022  for access to
documents pursuant to Regulation (EC) No. 1049/2001

Dear Mr Schindler,
Thank you for your application of 25 March 2022, registered on 29 March 2022 under
GESTDEM  number  2022/1883,  in which you request access to documents in the
Commission's case files in accordance with Regulation (EC) No. 1049/20011 ("Regulation
1049/2001"). We also make reference to our holding reply, dated 22 April 2022, whereby
we informed you that the time limit for handling your application was extended by 15
working days pursuant to Article 7(3) of Regulation 1049/2001.
1.  SCOPE OF YOUR APPLICATION
In your message, you requested “all information in the context of the Digital Markets Act
(DMA) concerning
•  remuneration for digital content OR
•  the role of publishers OR
•  rules on fairness for the provision of services OR

1  Regulation (EC) N° 1049/2001 regarding public access to European Parliament, Council and
Commission documents, OJ L145 of 31.5.2001, p. 43.

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

•  the inclusion of search engines in the context of the DMA (in particular in the
context of article 6) OR
•  FRAND provisions OR
•  the relationship of the DMA with the Copyright in the Digital Single Market
Directive OR
•  any communication with publishers or their representatives, associations or people
acting on their behalf in the context of the DMA”.
You particularly specified that the request “includes but is not limited to any proposals,
such as drafting suggestions or table documents for Art 6.1.k and the relevant recitals in
preparation  for or during the Digital Markets Act trilogue of 24 March 2022. (…)
content  in possession of the Commission provided by third parties, such as lobbyists,
outside legal counsel and member states”.
Based on this request, we searched for information and communications between publishers
or their representatives and associations, on the one hand, and Directorate General for
Competition (“DG COMP”) staff, on the other hand, related to the abovementioned topics.
Please note that this reply refers to documents identified in relation to your access to
documents request GESTDEM 2022/1833 submitted to DG COMP. Documents held by
other Directorate Generals (DGs) are covered by those DGs in reply to their respective
requests for access to documents.
1.  IDENTIFICATION AND ASSESSMENT OF THE RELEVANT DOCUMENTS
We have identified the following types of documents as part of the scope of your request:
•  Documents  related to the DMA concerning correspondence in order to set up
meetings between DG COMP staff with representatives of publishers,  book,
audiovisual and media associations; as well as
•  Emails concerning comments, amendments and positions of the above-referenced
organisations on the DMA.
Those documents fall, in part, under the exceptions of Article 4 of Regulation 1049/2001.
However, I am glad to inform  you that partial access can be granted to several of the
documents identified under this section.
Please find below in Section 3 the detailed assessment as regards the application of the
exceptions of Article 4 of Regulation 1049/2001 to the aforementioned documents.

2.  APPLICABLE EXCEPTIONS

2

link to page 3 link to page 3 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 some 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 documents 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".2
3.1 Exceptions applicable to the documents identified above under section 3
i.  Article 4(1)(b), Protection of privacy and integrity of individuals
Full disclosure of documents provided is prevented by the exception concerning the
protection of privacy and integrity of the individual outlined in Article 4(1)(b) Regulation
1049/2001, since they contain the following personal data:
−  the names/initials and contact information of Commission staff members not
pertaining to the senior management;
−  Names, functions and contact information of other natural persons.

Article 9(1)(b) of the Data Protection Regulation3  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) Regulation 1049/2001, access
cannot be granted to the personal data contained in the requested document, 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.

ii.  Article 4(2), first indent, protection of commercial interests

2  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.
3 Regulation (EU) 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.

3

Article 4(2) first indent of Regulation 1049/2001 provides that the institutions shall
refuse access to a document where disclosure would undermine the protection of
commercial interests of a natural or legal person, including intellectual property, unless
there is an overriding public interest in disclosure.
This provision must be interpreted in light of Article 339 of the Treaty of the Functioning
of the European Union (TFEU), which requires staff members of the EU institutions to
refrain from disclosing information of the kind covered by the obligation of professional
secrecy, in particular information about undertakings, their business relations or their cost
components.
Some of the documents requested by you, as specified above, have not been brought into
the public domain and are known only to a limited number of persons. In particular, several
documents you request access to contain commercial and market-sensitive information
regarding the position and activities of the involved undertakings whose public disclosure,
including the identification of the companies concerned,  would undermine the latters'
commercial interests. Full disclosure of these  documents  identifying the companies
involved could bring serious harm to the companies' commercial interests.
In view of the foregoing, the documents listed below are covered by the exception set out in
Article 4(2), first indent of Regulation 1049/2001, and partial access is granted (i.e., the
names of the companies and associations involved have been protected following the
requests by the parties that submitted the documents):
−  “DSA AV Sector Proposed AMs Plenary Vote Jan 202244”
−  “FW_ DMA - Trilogue _ Request for meeting _ AV and book position”
−  “RE DMA book and audiovisual sector”
−  “Re_ DMA _book and audiovisual sector - Follow up on amendment 14a - DMA
Ancillary services”
−  “20210619 DMA amendments”
−  “DMA_ suggested amendments”
−  “RE_ Meeting request and national representatives - Digital Markets Act (DMA)”
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

4

applicant) and, secondly, overriding, i.e.  in this case it must outweigh the interest
protected under Article 4(2), first and third indents, 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 documents under points 1 and 2 to which access has been
hereby  totally or partially denied  pursuant to Articles 4(2) and (3) of Regulation
1049/2001. 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 concerned undertakings.
4.  REUSE OF DOCUMENTS
Documents under Section 3 originate from third parties. Please note that they 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 originators,
who may hold an intellectual property right on them. The European Commission does not
assume any responsibility from their reuse.
5.  CONFIRMATORY APPLICATION
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 within 15 working days upon receipt of
this letter to the Secretariat-General of the Commission at 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

5

Document Outline