Ref. Ares(2023)1079130 - 14/02/2023
EUROPEAN COMMISSION
DIRECTORATE-GENERAL FOR COMMUNICATIONS NETWORKS, CONTENT AND
TECHNOLOGY
The Director-General
Brussels
CNECT.R.4
Clothilde Goujard
C/O POLITICO
62, Rue de la loi
1000 Brussels
Belgium
Via email:
ask+request-11960-
xxxxxxxx@xxxxxxxx.xxx
Subject:
Your access to documents request EASE 2022/5796
Dear Ms Goujard,
We refer to your email of 11 October 2022 wherein you make a request for access to
documents pursuant to Regulation (EC) No 1049/2001 of the European Parliament and of
the Council of 30 May 2001 regarding public access to European Parliament, Council
and Commission documents (hereinafter ‘Regulation (CE) No 1049/2001’), which was
registered on 12 October 2022 under the reference number indicated in the subject of this
letter.
1. SCOPE OF YOUR APPLICATION
Your request reads as follows:
“Under the right of access to documents in the EU treaties, as developed in
Regulation 1049/2001, I am requesting documents which contain the following
information:
Breton cabinet and Roblox Corporation on 27/09/2022 [...] Breton cabinet and
Spotify on 07/09/2022 [...]
On those meetings, I am requesting the following documents:
-All minutes, agendas, summary, memos and any other reports of these meetings,
issued both in preparation and after the meetings took place.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË – Tel. +32 22991111
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx@xx.xxxxxx.xx
- All correspondence including attachments (including, but not limited to any
emails, correspondence or telephone call notes) and follow ups, between any
Directorates
General/the
cabinet,
Commissioner
Breton
and
the
companies/organizations or any intermediaries representing their interests.
- All correspondence including attachments (i.e. any emails, correspondence or
telephone call notes) and follow ups, between any Directorate Generals, the
cabinet and Commissioner Breton about those meetings, issued both prior and
after.
- All documents prepared for the meetings and exchanged in the course of the
meetings between both parties”.
2. DOCUMENTS FALLING WITHIN THE SCOPE OF THE REQUEST
The following documents have been identified as falling within the scope of your
request:
-Email exchanges, 30 August 2022 to 6 September 2022, ARES(2022)7422261,
(“Document 1”)
-BTO, Meeting with Roblox, 27-09-2022, ARES(2022)6709362,
(“Document 2”)
-Summary of meeting, CAB Breton,
ARES(2022)6210683,
(“Document 3”)
-Briefing, meeting with Spotify, ARES(2022)6532296,
(“Document 4”)
-Email, 9 May 2022, Spotify, ARES(2022)3542510,
(“Document 5”)
-Letter, 9 May 2022, Spotify, ARES(2022)3542510
(“Document 6”)
-Email, 21 September 2022, Spotify, ARES(2022)6541171,
(“Document 7”)
-Letter, 21 September 2022, Spotify, ARES(2022)6541171,
(“Document 8”)
Please note that part of your request has also been attributed to the Directorate General
for Internal Market, Industry, Entrepreneurship and SMEs (DG GROW). The present
reply concerns only the meeting mentioned in the quote of your request above and falling
under the remit of the Directorate-General for Communications Networks, Content and
Technology (DG CONNECT).
The other parts of your request covering areas falling under the responsibility of
Directorate General for Internal Market, Industry, Entrepreneurship and SMEs (DG
GROW) will be addressed by the relevant service.
3.ASSESSMENT UNDER REGULATION 1049/2001
Following an examination of the identified documents under the provisions of Regulation
1049/2001 and taking into account the opinion of the third party, we have arrived at the
conclusion that partial access can be granted to Documents 1-4, whilst access is denied
for the remaining documents, as disclosure of these (parts of) the documents is prevented
by exceptions to the right of access laid down in Article 4 of Regulation 1049/2001.
A. Partial Disclosure
(i) Protection of the decision-making process
The first subparagraph of Article 4(3) of Regulation 1049/2001 provides that ‘
[a]ccess to
a document, drawn up by an institution for internal use or received by an institution,
which relates to a matter where the decision has not been taken by the institution, shall
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be refused if disclosure of the document would seriously undermine the institution’s
decision-making process, unless there is an overriding public interest in disclosure.’ Parts of Document 4 contain informal views and positions of the Commission services on
the Artificial Intelligence Act, for which the legislative decision-making process is
ongoing as the legislative act at stake has not been adopted yet.
The risk of disclosing information concerning preliminary opinions of the Commission
services before the adoption of the legislative act in question would deter the
Commission from freely expressing their views and conducting frank and internal
discussions. Speculations and misinterpretations of the public on the views and
reflections put forward in these ongoing decision-making processes would affect the
exploration of different policy options and unduly restrict the Commission’s internal
space to think, exposing the Commission to external pressure during the ongoing
decision-making processes. The risk of disclosure of such preliminary opinions and
reflections would therefore seriously undermine the ongoing decision-making processes.
That risk is also reasonably foreseeable and not purely hypothetical. In light of the
foregoing, we consider that pursuant to Article 4(3) first subparagraph of the Regulation
1049/2001, access cannot be granted to the abovementioned parts of Document 4.
According to the second subparagraph of Article 4(3) of Regulation 1049/2001,
‘access
to a document containing opinions for internal use as part of deliberations and
preliminary consultations within the institution concerned shall be refused even after the
decision has been taken if disclosure of the document would seriously undermine the
institution's decision-making process, unless there is an overriding public interest in
disclosure in view of the protection of the decision-making process.’ Parts of Document 4 contain information on the Digital Markets Act (DMA), which form
part of deliberations and preliminary positions of the European Commission for which
the decisions have been taken.
The public disclosure of these internal views would deter the European Commission
from freely expressing opinions and having frank, internal discussions, if they were to be
made publicly available. Furthermore, this would pose a continued risk to discussions
and deliberations on the implementation of the DMA and would expose the European
Commission to undue external pressure and disseminate preliminary conclusions that do
not represent the final position of the European Commission. The risk of disclosure of
these views and reflections put forward in the parts of the document at question would
seriously undermine the decision-making process. That risk is also reasonably
foreseeable and not purely hypothetical. In light of the foregoing, we consider that
pursuant to Article 4(3) second subparagraph of the Regulation 1049/2001, access
cannot be granted to the abovementioned parts of Document 4.
Consequently, the above-mentioned parts have been blanked out.
(ii) Protection of commercial interests
The first indent of Article 4(2) 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”.
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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.
Parts of Documents 2-4 contain sensitive information, views and positions related to
commercial interests of the legal entity concerned. The disclosure of these parts would
harm commercial interests of the legal entity. There is a real and non-hypothetical risk
that disclosure of these parts of the above-mentioned documents could undermine and
seriously affect the commercial interests of the company at question. Therefore, access to
these parts of the Documents 2-4 cannot be granted as the disclosure is prevented by the
exception to the right of access referred to above.
Consequently, the above-mentioned parts of Documents 2-4 have been blanked out.
(iii) Protection of privacy and integrity of individuals Full disclosure of Documents 1-4 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:
names and functions of Commission staff members not pertaining to the senior
management;
names, functions and signatures of other natural persons.
Article 9(1)(b) of the Data Protection Regulation (1) 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, we conclude that, pursuant to Article 4(1)(b) 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.
B. Non -disclosure
We regret to inform you that access to Documents 5-8 cannot be granted as their
disclosure is prevented by exceptions laid down in Article 4 of Regulation 1049/2001.
(1) 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.
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(i) Protection of commercial interests
Documents 5-8 are covered by the exception of Article 4(2) first indent of Regulation
1049/2001 for the protection of commercial interests. Documents 5- 8 originate from a
third party and contain confidential and commercially sensitive information related to the
respective third parties’ positions, views and strategies. We could not obtain the views of
the concerned third party about a potential disclosure within the given timeframe. After
assessment, we have come to the conclusion that a disclosure of the Documents 5-8 could
undermine their commercial interests. Therefore, access is refused to these Documents as
their disclosure is prevented by the exception to the right of access laid down in Article
4(2), first indent of Regulation 1049/2001.
In addition, parts of Documents 5-8 contain personal data, in particular the names and
functions of Commission staff members not pertaining to the senior management as well
as the names, functions, contact details, handwritten signatures of other natural persons.
Thus, their disclosure is prevented by the exception of Article 4(1)(b) of Regulation
1049/2001 for the reasons set out in Section A (iii). Moreover, part of Document 7 fall
outside the scope of the request.
4. PARTIAL ACCESS
We have considered whether partial access could be granted to the Documents to which
access is refused. However, partial access is not possible considering that these
Documents are covered in their entirety by the abovementioned exceptions of Article 4 of
Regulation 1049/2001.
5. OVERRIDING INTEREST IN DISCLOSURE The exceptions laid down in Article 4(2) and 4(3) of Regulation 1049/2001 apply, unless
there is an overriding public interest in the disclosure of the documents identified. Such
an interest must, firstly, be a public interest and, secondly, outweigh the harm caused by
disclosure. We have examined whether there could be an overriding public interest in the
disclosure of the aforementioned parts of the documents which are being withheld but we
have not been able to identify such an interest
6. REUSE OF DOCUMENTS You may reuse public documents which have been produced by the
European Commission or by public and private entities on its behalf based on the
Commission Decision on the reuse of Commission documents. You may reuse the (parts
of) disclosed Documents 1-4 originating from the Commission free of charge and for
non-commercial and commercial purposes provided that the source is acknowledged and
that you do not distort the original meaning or message of the documents. Please note
that the Commission does not assume liability stemming from the reuse.
Please note that Documents 2-4 were drawn up for internal use under the responsibility
of the relevant staff member of DG CONNECT. They solely reflect the author's
interpretation of the interventions made. They do not reflect the position of nor do they
commit the Commission, DG CONNECT and/or any third party referred to and cannot
be quoted as such.
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Please note also that part of Document 1, originating from a third party is disclosed to
you based on Regulation 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 document without the agreement of the originator, who may hold an intellectual
property right on it. The European Commission does not assume any responsibility from
its reuse.
7. 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
by asking for a review via your
portal (2) account (available only for initial requests submitted via the portal account),
or via the following address:
European Commission
Secretariat-General
Transparency, Document Management & Access to Documents (SG.C.1)
BERL 7/076
B-1049 Brussels
or by email t
o: xxxxxxxxxx@xx.xxxxxx.xx Yours faithfully,
Electronically signed
Roberto Viola
Enclosures:
(4)
(2)
https://www.ec.europa.eu/transparency/documents-request
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Electronically signed on 14/02/2023 15:45 (UTC+01) in accordance with Article 11 of Commission Decision (EU) 2021/2121