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EUROPEAN COMMISSION
Competition DG
The Director General
Brussels,
COMP/H2/LMM/(2022)
Olivier Petitjean
2 impasse Delaunay
F-75011 Paris
By e-mail
: ask+request-11753-
xxxxxxxx@xxxxxxxx.xxx
Subject:
GESTDEM 2022/4767– Your request of 18 August 2022 for access to
documents pursuant to Regulation (EC) No. 1049/2001 relating to
correspondence and meetings between Olivier Guersent and
stakeholders
Dear Sir,
Thank you for your message of 18 August 2022, registered on the same day under
GESTDEM number 2022/4767, in which you request access to documents in the
Commission's case file 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 all email correspondence,
attendance lists, agendas, background papers, transcripts, recordings and
minutes/notes) relating to the meeting between Olivier Guersent and TotalEnergies
regarding the CEEAG of 8 March 2022.
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. Telephone: (32-2) 299 11 11.
• All documentation (including but not limited to all email correspondence,
attendance lists, agendas, background papers, transcripts, recordings and
minutes/notes) relating to the meeting between Olivier Guersent and Engie of 3
May 2022.
• All documentation (including but not limited to all email correspondence,
attendance lists, agendas, background papers, transcripts, recordings and
minutes/notes) relating to the meeting between Olivier Guersent and Air Liquide of
18 May 2022.
We identified the following documents:
1) Briefing for Olivier Guersent – Meeting with TotalEnergies
of 8 March 2022
2) Briefing for Olivier Guersent – Meeting with Engie of 3 May 2022
3) Briefing for Olivier Guersent - Meeting with Air Liquide of 18 May 2022.
Please find attached to this letter a copy of the 3 documents. However, documents 1, 2 and 3
can be only partially disclosed.
Document 1 has three sections: (i) the first one can be partially disclosed since one part of
the section relates to an ongoing case SA.59339, (ii) the second one which is not case-
related can be disclosed in its entirety and (iii) the third one can only be partially disclosed
since one part is related to the administrative file of DG Competition concerning Case
SA.64631.
Document 2 has six sections: the first and fourth can be disclosed, the second, third and fifth
cannot be disclosed since they relate to ongoing cases (SA.58384, SA.54915 and
SA.102635). The sixth section can only be partially disclosed since it is related to the
administrative file of DG Competition concerning Case SA.64631.
Document 3 can be partially disclosed. It has two parts: one which does not reveal any
confidential information and a second part which is related to the administrative file of DG
Competition concerning Case SA.64631.
Having carefully examined your request in the light of Regulation 1049/2001, I have come
to the conclusion that document 1 (part of section one and part of section three), document 2
(sections two, three, five and on part of section six) and document 3 (part two) fall under the
exceptions of Article 4 of Regulation 1049/2001. Please find below the detailed assessment
as regards the application of the exceptions of Article 4 of Regulation 1049/2001.
2. APPLICABLE EXCEPTIONS
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 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
document(s) 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
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guarantee access for everyone to public documents and not just access for the requesting
party to documents concerning it".2
Article 4(2), third indent, protection of the purpose of investigations and Article 4(3)
protection of the institution's decision making process
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.
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.
These exceptions aim at protecting the Commission's capacity to ensure that Member States
and undertakings comply with their obligation 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
TGI3, 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 with regard to the exception related to the protection of the purpose of
investigations, a general presumption that disclosure of documents in the file would
undermine the purpose of State aid investigations. The Court reasoned that this follows
from the fact that under the State aid procedural rules, the interested parties, other than
the Member State concerned, have no right to consult the documents in the
administrative file and should such access be granted under Regulation 1049/2001 the
nature of the procedure is likely to be modified and thus the system for review of State
aid would be called into question
4. This line of reasoning was upheld by the Court in
Sea
Handling even when it comes to a reduced number of documents pertaining to a State aid
file
5.
The State aid procedural regulations, especially Regulation 2015/1589
6, contains specific
rules regarding treatment of information obtained in the context of such proceedings and
allowing public access to it on the basis of Regulation 1049/2001 would, in principle,
jeopardise the balance which the Union legislature wished to ensure in State aid
procedures between the obligation on Member States to communicate possibly sensitive
information (including sensitive commercial information related to undertakings) to the
Commission and the guarantee of increased protection in accordance with the State aid
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 See Case C-139/07 P,
Commission v Technische Glaswerke Ilmenau GmbH 4 See Case C-139/07 P,
Commission v Technische Glaswerke Ilmenau GmbH, paragraphs 58-59
5 See Case T-465/13,
Sea Handling SPA v Commission, paragraphs 55-58 and 61
6 Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of
Article 108 of the Treaty on the Functioning of the European Union (Text with EEA relevance) OJ L
248 of 24.9.2015, p. 9–29
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procedural regulations. In essence, the State aid procedural regulation 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 observance of 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).
As mentioned above, documents 1, 2 and 3 contain sections which relate to pending State
aid investigations and contain preliminary assessments of the facts and other information
from which the direction of the investigations, the future procedural steps which the
Commission may take, as well as its investigative strategy may be revealed to the public.
This information could easily be misinterpreted or misrepresented as indications of the
Commission's possible final assessment in this case. Such misinterpretations and
misrepresentations may cause damage to the reputation and standing of the potential
beneficiaries investigated.
The requested sections of the documents would reveal the Commission's investigation
strategy and their disclosure would therefore undermine the protection of the purpose of the
investigation and would also seriously undermine the Commission's decision making
process, especially in case the final decision of the Court would prompt the Commission to
resume the investigation. The Commission's services must be free to explore all possible
options in preparation of a decision free from external pressure.
In view of the foregoing, document 1, document 2 and document 3 as far as they concern
Cases SA.59339, SA.64631, SA.58384, SA.54915 and SA.102635 are manifestly covered
by the exception related to the protection of the purpose of the Commission's State aid
investigations set out in Article 4(2), third indent of Regulation 1049/2001. Moreover, the
previously mentioned sections of these internal Commission documents 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.
Article 4(2), first indent, protection of commercial interests
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.
Economic entities 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.
Document 1 (part of section one and part of section three), document 2 (sections two, three,
five and part of section six) and document 3 (part two) requested by you, as specified above,
are part of the file in a competition case, have not been brought into the public domain and
are known only to a limited number of persons. In particular, these documents contain
commercial and market-sensitive information regarding the activities of the potential
beneficiaries and other third parties, whose public disclosure would undermine the latters'
commercial interests. Disclosure of these documents could bring serious harm to the
undertakings' commercial interests.
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In view of the foregoing, document 1 (part of section one and part of section three),
document 2 (sections two, three, five and part of section six) and document 3 (part two) are
covered by the exception set out in Article 4(2), first indent of Regulation 1049/2001.
Article 4(1)(b), protection of privacy and the integrity of the individual, protection of
personal data
The documents to which you have requested access contain personal data (names of
individuals).
Pursuant to Article 4(1)(b) of Regulation (EC) No 1049/2001, access to a document (or
sections of it) has to be refused if its disclosure would undermine the protection of
privacy and the integrity of the individual, in particular in accordance with European
Union legislation regarding the protection of personal data.
The applicable legislation in this field is Regulation (EC) 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 (‘Regulation 2018/1725’)
7.
Pursuant to Article 9(1)(b) of Regulation 2018/1725, ‘personal data shall only be
transmitted to recipients established in the Union other than Union institutions and bodies
if the recipient establishes that it is necessary to have the data transmitted for a specific
purpose in the public interest and the controller, where there is any reason to assume that
the data subject’s legitimate interests might be prejudiced, establishes that it is
proportionate to transmit the personal data for that specific purpose after having
demonstrably weighed the various competing interests’.
Only if these conditions are fulfilled and the processing constitutes lawful processing in
accordance with the requirements of Article 5 of Regulation 2018/1725, can the
transmission of personal data occur.
According to Article 9(1)(b) of Regulation 2018/1725, the European Commission has to
examine the further conditions for a lawful processing of personal data only if the first
condition is fulfilled, namely if the recipient has established that it is necessary to have
the data transmitted for a specific purpose in the public interest. It is only in this case that
the European Commission has to examine whether there is a reason to assume that the
data subject’s legitimate interests might be prejudiced and, in the affirmative, establish
the proportionality of the transmission of the personal data for that specific purpose after
having demonstrably weighed the various competing interests.
In your request, you do not put forward any arguments to establish the necessity to have
the data transmitted for a specific purpose in the public interest. Therefore, the European
Commission does not have to examine whether there is a reason to assume that the data
subject’s legitimate interests might be prejudiced.
7 L 295 of 21.11.2018, p. 39.
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Notwithstanding the above, please note that there are reasons to assume that the
legitimate interests of the data subjects concerned would be prejudiced by disclosure of
the personal data reflected in the documents, as there is a real and non-hypothetical risk
that such public disclosure would harm their privacy and subject them to unsolicited
external contacts.
Consequently, I conclude that, pursuant to Article 4(1)(b) of Regulation 1049/2001,
access cannot be granted to the personal data, 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.
Therefore, we are disclosing document 1, 2 and 3 expunged from personal data.
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 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 documents 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
As previously explained, partial access is being granted to documents 1, 2 and 3 as set
above.
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 latter case, you will be informed of how you can
take further action.
All correspondence should be sent to the following address:
European Commission
Secretary-General
Transparency, Document Management & Access to Documents (SG.C.1)
6
BERL 7/076
B-1049 Bruxelles
or by email to
: xxxxxxxxxx@xx.xxxxxx.xx.
Yours faithfully,
E-signed
Olivier GUERSENT
Enclosed documents:
Copies of 3 documents
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Document Outline