Ref. Ares(2022)5170881 - 15/07/2022
EUROPEAN COMMISSION
DIRECTORATE-GENERAL FOR COMMUNICATIONS NETWORKS, CONTENT AND
TECHNOLOGY
`
The Director- General
Brussels, 15th July 2022
CNECT.R.4
Ms Nienke Palstra
Global Witness
Rue Belliard 53
1000 Brussels
Belgium
Via email:
ask+request-11304-
xxxxxxxx@xxxxxxxx.xxx ask+request-11312-
xxxxxxxx@xxxxxxxx.xxx ask+request-11315-
xxxxxxxx@xxxxxxxx.xxx ask+request-11321-
xxxxxxxx@xxxxxxxx.xxx
Subject:
Your application for access to documents - GestDem 2022/3022,
2022/3025, 2022/3027, 2022/3028
Dear Ms Palstra,
We refer to your emails of 24 May 2022 wherein you make four requests 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 1049/2001’), which were registered
on 25 May 2022 under the abovementioned reference numbers. We also refer to our
email, dated 20 June 2022 (our reference Ares(2022)4530067) whereby we informed you
that the time limit for handling your applications was extended by 15 working days
pursuant to Article 7(3) of Regulation 1049/2001.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx@xx.xxxxxx.xx
1.
SCOPE OF YOUR APPLICATIONS
Your requests read as follow:
GestDem 2022/3022
“…. All documents—including but not limited to correspondence, emails, minutes, notes
(hand written or electronic), audio or video recordings, verbatim reports, operational
conclusions, lines to take, briefings, and presentations—related to the meeting on 2022-
05-19 between Thierry Breton and Meta Platforms Ireland Limited and its various
subsidiaries (f/k/a Facebook Ireland Limited).…..”
GestDem 2022/3025
“…..All documents—including but not limited to correspondence, emails, minutes, notes
(hand written or electronic), audio or video recordings, verbatim reports, operational
conclusions, lines to take, briefings, and presentations—related to the meeting on 2022-
03-30 between Thierry Breton and Google.….”
GestDem 2022/3027
“….All documents—including but not limited to correspondence, emails, minutes, notes
(hand written or electronic), audio or video recordings, verbatim reports, operational
conclusions, lines to take, briefings, and presentations—related to the meeting on 2022-
03-10 between Filomena Chirico and Apple Inc..…”
GestDem 2022/3028
“…All documents—including but not limited to correspondence, emails, minutes, notes
(hand written or electronic), audio or video recordings, verbatim reports, operational
conclusions, lines to take, briefings, and presentations—related to the meeting on 2022-
03-15 between Filomena Chirico and Valere Moutarlier and Microsoft Corporation.…”
2.
DOCUMENTS FALLING WITHIN THE SCOPE OF THE REQUEST
The following documents have been identified as falling within the scope of your
request:
2.1. GestDem 2022/3022
Email, Meeting request, CAB Breton, 13-04-2022, ARES(2022)3010219
(
Document 1)
Readout, Readout - Meeting with Meta - 19 May 2022, CAB Breton, 20-05-2022,
ARES(2022)3856997
(Document 2)
Briefing note, DG CNECT
(Document 3)
2.2. GestDem 2022/3025
Email, Meeting request with Google and Commissioner Breton, 24-02-2022
(Document 4)
Readout following meeting between Commissioner Breton and Alphabet/Google-
30/03/2022, 05-04-2022, ARES(2022)2573676
(Document 5)
2
Briefing note, DG CNECT, ARES(2022)3023151
(Document 6)
2.3. GestDem 2022/3027
Email, Further input on virtual assistants, 14-03-2022, ARES(2022)1873385
(Document 7)
Email, DMA-Apple meeting request, 15-02-2022, ARES(2022)1835529
(Document 8)
BTO, Meeting CAB’s Apple on EP amendments re Vas, Arts 6(1)(c) and f- 10
March 2022, ARES(2022)4240373
(Document 9)
2.4. GestDem 2022/3028
Email exchanges, Virtual meeting request for the kind attention of Mr. Valère
Moutarlier, 24.11.2021, ARES(2021)7243676,
(Document 10)
Briefing note, DG CNECT, ARES(2022)2328430
(Document 11)
Email, meeting with Microsoft, ARES(2022)4267900
(Document 12)
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 parties, we have arrived at the
conclusion that partial access can be granted to the documents identified. Full disclosure
is prevented by exceptions to the right of access laid down in Article 4 of Regulation
1049/2001.
(i) Protection of privacy and integrity of individuals
Full disclosure of Documents 1 - 12 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 and contact information of Commission staff members not pertaining to
the senior management;
the names and functions of other natural persons.
Article 9(1)(b) of the Data Protection Regulation1 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) of the Regulation 1049/2001,
access cannot be granted to the personal data contained in the identified documents, as
the need to obtain access thereto for a purpose in the public interest has not been
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.
3
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) Protection of international relations
Article 4(1)(a), third indent of Regulation 1049/2001 stipulates that access to a document
shall be refused ‘(…)
where disclosure would undermine the protection of the public
interests as regards international relations’.
According to settled case-law, ‘
the particularly sensitive and essential nature of the
interests protected by Article 4(1)(a) of Regulation No 1049/2001, [….]
calls for the
exercise of particular care. Such a decision therefore requires a margin of
appreciation’2. In this context, the Court of Justice has acknowledged that the institutions
enjoy ‘
a wide discretion for the purpose of determining whether the disclosure of
documents relating to the fields covered by [the] exceptions [under Article 4(1)(a)] could
undermine the public interest’3.
Parts of Document 3 contain sensitive information concerning the state of disinformation
in Ukraine and the possible impact on third countries. There is a concrete risk that the
public disclosure of the abovementioned parts of Document 3 would affect the EU’s
international relations with third countries.
Consequently, the above-mentioned parts of Document 3 have been blanked out.
(iii) Protection of commercial interests
The first indent of Article 4(2) of the 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.
Parts of Documents 3, 6, 9, 10 and 11 contain business information of third parties. We
consider that these parts constitute sensitive business information, views and positions of
the organizations concerned, which relate to business strategies, the competitive situation
on the market and other commercial interests of companies, including intellectual
property. There is a real and non-hypothetical risk that disclosure of these parts of
Documents 3, 6, 9, 10 and 11 could undermine and seriously affect the commercial
interests of the companies at question. Therefore, access to these parts of Document 3, 6,
9, 10 and 11 cannot be granted as the disclosure is prevented by the exception to the right
of access referred to above.
Consequently, the above-mentioned parts have been blanked out.
(iv) Protection of the decision-making process
2 Judgment in Sison v Council, C-266/05 P, EU:C:2007:75, paragraph 35
3 Judgment in Council v Sophie in’t Veld, C-350/12 P, EU:C:2014:2039, paragraph 63
4
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
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.’
Documents 3, 6 and 11 contain preliminary opinions and reflections of the Commission
services on the Digital Services Act package. The Digital Services Act package is subject
to ongoing legislative decision-making processes, as the Council has not yet adopted the
final texts of the Digital Markets Act and the Digital Services Act. In addition, Document
6 also contains opinions and reflections of the Commission services on the Data Act
proposal for a Regulation on harmonised rules on fair access to and use of data and on
the EU cloud security certification scheme, which are also subject to ongoing legislative
decision-making processes.
The risk of disclosing information concerning preliminary opinions of the Commission
services before the adoption of the legislative acts 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 and the co-legislators to external pressure
during the ongoing legislative 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 considerations, we consider that pursuant to Article 4(3) first
subparagraph of the Regulation 1049/2001, access cannot be granted to the
abovementioned parts.
Consequently, the above-mentioned parts have been blanked out.
4.
OVERRIDING INTEREST IN DISCLOSURE
The exceptions laid down in Article 4(2) and Article 4(3) of Regulation 1049/2001 apply,
unless there is an overriding public interest in the disclosure of documents. 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.
5.
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 the Commission documents. You may reuse Documents 2, 3, 5,
6, 9, 10, 11 and 12 and the parts of Documents 4, 10 and 14 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
5
message of the documents. Please note that the Commission does not assume liability
stemming from the reuse.
Please note that Documents 1, 4, 7, 8 and 10 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
their reuse.
We would also like to stress that Documents 2, 3, 5, 6, 9, 11 and 12 were drawn up for
internal use under the responsibility of the relevant service of DG CONNECT. They
solely reflect the service’s interpretation of the interventions made and do not set out any
official position of the third parties to which the abovementioned documents refer, which
were not consulted on their content. They do not reflect the position of the Commission
and cannot be quoted as such.
6.
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 t
o: xxxxxxxxxx@xx.xxxxxx.xx
Yours sincerely,
Electronically signed
Roberto Viola
Enclosures: (12)
6
Electronically signed on 15/07/2022 15:10 (UTC+02) in accordance with Article 11 of Commission Decision (EU) 2021/2121
Document Outline
