Ref. Ares(2024)2680684 - 12/04/2024
EUROPEAN COMMISSION
DIRECTORATE-GENERAL FOR COMMUNICATIONS NETWORKS, CONTENT AND
TECHNOLOGY
The Director-General
Brussels, 12 April 2024
CNECT.R.4
Samuel Groesch
Gymnasiumstrasse 4
551 16 Mainz
Germany
E-mail:
ask+request-14371-
xxxxxxxx@xxxxxxxx.xxx
Subject:
Your applications for access to documents EASE 2024/1416, 2024/1417
and 2024/1418
Dear Mr Groesch,
We refer to your requests for access to documents pursuant to Regulation (EC) No
1049/2001 regarding public access to European Parliament, Council and Commission
documents (hereinafter ‘Regulation 1049/2001’), which were registered on 13 March 2024
under the abovementioned reference numbers.
1.
SCOPE OF YOUR APPLICATIONS
Your applications read as follows:
EASE 2024/1416:
‘Dear Communications Networks, Content and Technology,
On the basis of the freedom of information in the EU Treaties, as guaranteed by
Regulation 1049/2001, I am requesting documents containing the following
information:
(1) Questions sent to TikTok and YouTube under the Digital Services Act.
(2) Answers provided by the two platforms.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË – Tel. +32 22991111
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx@xx.xxxxxx.xx
With my request, I am referring to the press release of November 2023: https://digital-
strategy.ec.europa.eu/en/news/commission-sends-requests-information-tiktok-and-
youtube-under-digital-services-act’
EASE 2024/1417:
‘Dear Communications Networks, Content and Technology,
On the basis of the freedom of information in the EU Treaties, as guaranteed by
Regulation 1049/2001, I am requesting documents containing the following
information:
(1) Questions sent to Meta under the Digital Services Act.
(2) Potential answers provided by the platform.
With my request, I am referring to the press release of March 2024: https://digital-
strategy.ec.europa.eu/en/news/commission-sends-request-information-meta-under-
digital-services-act-1’
EASE 2024/1418:
'Dear Communications Networks, Content and Technology,
On the basis of the freedom of information in the EU Treaties, as guaranteed by
Regulation 1049/2001, I am requesting documents containing the following
information:
(1) Questions sent to Meta and Snap under the Digital Services Act.
(2) Potential answers provided by the platforms.
With my request, I am referring to the press release of November 2023: https://digital-
strategy.ec.europa.eu/en/news/commission-sends-requests-information-meta-and-
snap-under-digital-services-act’
2.
DOCUMENTS FALLING WITHIN THE SCOPE OF THE REQUESTS
The documents you request form part of case files in pending investigations under
Regulation (EU) 2022/2065 (1) (the Digital Services Act, hereinafter the ‘
DSA
Regulation’). As for these documents a general presumption of non-accessibility applies,
the requested documents are not listed in detail.
3.
ASSESSMENT UNDER REGULATION 1049/2001
Following an examination of your requests under the provisions of Regulation 1049/2001,
we regret to inform you that access to the requested documents cannot be granted as
disclosure is prevented by exceptions to the right of access laid down in Article 4(2), first
1 Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a
Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act), OJ L
277, 27.10.2022, p. 1–102
2
indent of Regulation 1049/2001 (protection of commercial interests), Article 4(2), third
indent of Regulation 1049/2001 (protection of investigations) and Article 4(3) (protection
of the institution’s decision-making process).
Article 4(2) first and third indent - protection of commercial interests and protection of
investigations
The first indent of Article 4(2) of Regulation (EC) No 1049/2001 provides that ‘
[t]he
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’.
The third indent of Article 4(2) of Regulation (EC) No 1049/2001 provides that
‘[t]he
institutions shall refuse access to a document where disclosure would undermine the
protection of [..] the purpose of inspections, investigations and audits, unless there is an
overriding public interest in disclosure’.
The requested documents are part of four DSA case files with the file numbers DSA.100050,
DSA.100062, DSA.100071 and DSA.100095. These case files are related to the enforcement
of the DSA Regulation. The DSA Regulation sets out rules for a safe, predictable and
trusted online environment and lays down various obligations on the providers of
intermediary services.
The documents requested were both addressed to the Commission by the entities concerned
as well as addressed to the entities concerned by the Commission. The Commission is
empowered, pursuant to Article 67 of DSA Regulation, to require providers of a very large
online platforms to provide all necessary information to enable the Commission to carry
out its duties under DSA Regulation. Based on the assessment of the replies of the entities,
the Commission assess next steps, which could entail formal openings of proceedings
pursuant to Article 66 of the DSA.
This procedure falls under the notion of investigation in line with Article 4(2), third indent of
Regulation 1049/2001, which the case law (2) defines as a structured and formalized
Commission procedure that has the purpose of collecting and analysing information in order
to enable the institution to take a position in the framework of its functions established by the
Treaties. In this respect and in light of the
Múka case (3), the presumption of inaccessibility
applies regardless of whether the investigation is pending or if it has already been closed.
The above-mentioned investigations conducted in accordance with the DSA Regulation
are comparable and have strong procedural similarities with other types of Commission
investigations aimed at assessing the compliance with EU law of the undertakings’
functioning, such as the antitrust proceedings under Articles 101 and 102 of the Treaty on
2 See Case C-365/12 P, Commission v EnBW Energie Baden-Württemberg, ECLI:EU:C:2014:112,
paragraph 97.
3 Case T-214/21,
Múka v Commission, ECLI:EU:T:2022:607, paragraphs 44 and 55.
3
the Functioning of the European Union4 (hereafter ‘TFEU’), the state aid investigations
laid down in Article 108 TFEU and the proceedings applicable to mergers, set out in
Regulation (EC) No 139/20045. In the DSA investigations, similarly to these types of
investigations in the field of competition, any decision of the European Commission has
to be based on a complex assessment of facts collected during an investigation concerning
Union or foreign undertakings. While it is true that there are differences in the nature and
conduct of the antitrust, state aid, merger control and DSA procedures, the fact remains
that the commercial interests of those undertakings, which are protected in all these
procedures, are similar.
Against this background, it is important to note that:
- Regarding the antitrust investigations, the Court of Justice held on several
occasions that the disclosure, on the basis of a request submitted pursuant to
Regulation (EC) No 1049/2001, of documents from an administrative file regarding
the application of Article 101 and 102 TFEU would undermine the system of
procedural rules set up in Regulations No 1/20036 and 773/20047, and in particular
the rules on confidentiality and access to the file. The Court stated that there is,
with regard to the exception related to the protection of the purpose of
investigations, a general presumption that the disclosure of documents in such
cases would undermine the purpose of the privileged access rules introduced by the
procedural rules set out by those Regulations8. It should additionally be mentioned
that the General Court further acknowledged that, having regard to the nature of
the interests protected, this presumption applies regardless of whether an
application for access to documents concerns a proceeding which has already been
closed or a proceeding which is pending9.
- Also, with regard to documents forming part of procedures for reviewing State aid
the Court reasoned that their disclosure to the public on the basis of Regulation
(EC) No 1049/2001 would call into question the State aid procedural system. The
Court of Justice pointed out that no interested party, except for the Member State
4 OJ C 202, 7.6.2016, p. 47.
5 Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between
undertakings (the Merger Regulation
), OJ L 24, 29.1.2004, p. 1.
6 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 (now 101 and 102) of the Treaty, OJ
L 1, 4.1.2003, p. 1.
7 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 (now 101 and 102) of the Treaty,
OJ L 123, 27.4.2004,
p. 18.
8 Judgment of the General Court of 13 September 2013,
Netherlands v Commission, T-380/08,
ECLI:EU:T:2013:480, paragraphs 30-31 and 38-40; Judgment of the Court of 27 February 2014,
Commission v EnBW Energie Baden-Württemberg, C-365/12P, EU:C:2014:112, paragraphs 81-88;
Judgment of the General Court of 7 October 2014,
Schenker v Commission, T-534/11, EU:T:2014:854,
paragraphs 48-55; Judgment of the General Court of 28 March 2017,
Deutsche Telekom AG v
Commission, T-210/15, EU:T:2017:224, paragraphs 37-43.
9 Judgment of the General Court of 13 September 2013,
Netherlands v Commission, T-380/08,
ECLI:EU:T:2013:480, paragraph 43; Judgment of the General Court of 7 October 2014,
Schenker v
Commission, T-534/11, EU:T:2014:854, paragraph 58; Judgment of the General Court of 28 March
2017,
Deutsche Telekom AG v Commission, T-210/15, EU:T:2017:224, paragraph 45.
4
responsible for granting the aid, has a right under the procedure for reviewing State
aid to consult the documents on the Commission’s administrative file10.
- With regard to mergers, the Court of Justice stated that ‘such general presumptions
are applicable to merger control proceedings because the legislation governing
those procedures also lays down strict rules as regards the treatment of information
obtained or established in those proceedings’11. The Court acknowledged that ‘[…]
generalised access, on the basis of Regulation [(EC)] No 1049/2001, to the
documents exchanged in […] a (merger) procedure between the Commission and
the notifying parties or third parties would […] jeopardise the balance which the
European Union legislature sought to ensure in the merger regulation between the
obligation on the undertakings concerned to send the Commission possibly
sensitive commercial information to enable it to assess the compatibility of the
proposed transaction with the common market, on the one hand, and the guarantee
of increased protection, by virtue of the requirement of professional secrecy and
business secrecy, for the information so provided to the Commission, on the
other’12. The Court recognised also in the context of merger control proceedings
that the general presumption of confidentiality applies irrespective of whether the
request for access concerns a control procedure which is already closed or a
pending procedure13.
The reasoning used in the above-mentioned case-law establishing a general presumption
of non-disclosure for documents belonging to antitrust, state aid and merger files can also
be applied in DSA investigations, given that the DSA Regulation contains specific
provisions on access to the file and confidentiality:
1) Article 79(4) sets out the right of the ‘parties concerned’ to have access to the
Commission’s file, ‘under the terms of a negotiated disclosure, subject to the
legitimate interest of the provider of the very large online platform or of the very
large online search engine or other person concerned in the protection of their
business secrets’. It follows that third parties do not, under such proceedings, have
any right of access to the documents in the Commission’s file. Article 5 of the
10 Judgment of the Court of 29 June 2010,
Commission v Technische Glaswerke Ilmenau GmbH,
C-139/07 P, ECLI:EU:C:2010:376, paragraphs 55-59; Judgment of the Court of 14 July 2016,
Sea
Handling v Commission, C-271/15 P, EU:C:2016:557, paragraph 37.
11 Judgment of the Court of 28 June 2012,
Commission v Agrofert Holding a.s., C-477/10 P,
ECLI:EU:C:2012:394, paragraph 59; Judgment of the Court of Justice of 28 June 2012,
Commission v
Éditions Odile Jacob SAS, C-404/10 P, EU:C:2012:393, paragraph 118.
12 Judgment of the Court of 28 June 2012,
Commission v Agrofert Holding a.s., C-477/10 P,
ECLI:EU:C:2012:394, paragraph 62; Judgment of the Court of Justice of 28 June 2012,
Commission v
Éditions Odile Jacob SAS, C-404/10 P, EU:C:2012:393, paragraph 124.
13 Judgment of the Court of 28 June 2012,
Commission v Agrofert Holding a.s., C-477/10 P,
ECLI:EU:C:2012:394, paragraph 66; Judgment of the Court of Justice of 28 June 2012,
Commission v
Éditions Odile Jacob SAS, C-404/10 P, EU:C:2012:393, paragraphs 118, 121 and 124.
5
Commission Implementing Regulation (EU) 2023/120114 sets out detailed
arrangements applicable to the right of access to the file.
2) Article 84 lays down the treatment of information obtained in the context of DSA
proceedings, designed to ensure the observance of professional secrecy. Natural
and legal persons submitting information under the DSA Regulation have a
legitimate right to expect that - apart from the publication, as mentioned in Article
80(2), of the decisions with any confidential information removed from it - the
information they supply to the Commission on an obligatory or voluntary basis will
not be disclosed to the public. Detailed arrangements for the protection of
confidential information are further laid down in Article 6 of the Commission
Implementing Regulation (EU) 2023/1201, referred to above.
Applying by analogy the reasoning followed by the Court in the competition cases
mentioned above, we note that the DSA Regulation and Regulation (EC) No 1049/2001
have different aims and do not contain any provision expressly giving one regulation
primacy over the other. Therefore, it is necessary for the Commission to make sure that
each of these Regulations is applied in a manner which is compatible with the other and
which enables a coherent application of them.
The documents requested are part of four administrative files of procedures governed by
the DSA Regulation. These are relevant for the implementation and enforcement of the
DSA Regulation. Therefore, the right of access to them is also governed by the restrictive
rules for the use of documents in such DSA procedures, referred to in the preceding
paragraph. These considerations must be taken into account in interpreting the first and
third indents of Article 4(2) of Regulation No 1049/2001. If persons other than those with
a right of access under the DSA Regulation, or those who enjoy such a right in principle
but have not used it or have been refused access, were able to obtain access to documents
on the basis of Regulation (EC) No 1049/2001, the access system introduced by the DSA
Regulation would be undermined.
Furthermore, having regard to the objectives of investigations launched by the
Commission pursuant to the DSA Regulation - which is to ascertain whether or not the
providers of very large online platforms and of very large online search engines comply
with their obligations laid down in this Regulation - the Commission is likely to gather, in
the context of such proceedings, commercially sensitive information concerning internal
organisation arrangements, functioning of the entities concerned, as well as business
practices and conducts, activities and strategies in relation to potential risks; therefore,
disclosure of documents relating to such proceedings can indeed undermine the protection
of the commercial interests of those entities.
The exceptions relating to the protection of commercial interests and the protection of the
purpose of investigations are therefore, in such procedures, closely connected.
14 Commission Implementing Regulation (EU) 2023/1201 of 21 June 2023 on detailed arrangements for
the conduct of certain proceedings by the Commission pursuant to Regulation (EU) 2022/2065 of the
European Parliament and of the Council (‘Digital Services Act’
), OJ L 159, 22.6.2023, p. 51.
6
As mentioned above, the Court acknowledged the existence of the general presumption of
confidentiality in relation to requests for disclosure of documents in a file relating to a
procedure pursuant to Articles 101, 102 and 108 TFEU or a file concerning merger control
proceedings and that the Commission is entitled to presume that disclosure of such documents
will, in principle, undermine the protection of the commercial interests of the undertakings
involved in those proceedings, as well as the protection of the purpose of investigations
relating to such proceedings within the meaning of the first and third indents of Article 4(2)
of Regulation (EC) No 1049/2001. Therefore, requests for disclosure of documents in a
DSA investigation can benefit, by analogy, from the same treatment as the aforementioned
cases in the field of competition and thus from the application in this case of a general
presumption of non-disclosure.
Furthermore, it should be noted that, when a general presumption of confidentiality applies
for the purposes of the application of the exceptions provided for in the first and third
indents of Article 4(2) of Regulation No 1049/2001, the Court acknowledged in its case-
law that it is not necessary for the Commission to carry out a specific, individual
examination of the documents in a file covered by this presumption. The reasons
mentioned above substantiate in sufficient manner that there is a real and non-hypothetical
risk that the disclosure of the documents requested would undermine not only the
protection of the purpose pursued by the Commission’s investigation and their follow-up,
but also the protection of the commercial interests of the undertaking concerned.
In view of the foregoing the requested documents must be withheld based on the exceptions
set out in the first indent (protection of commercial interests) and third indent (protection of
investigations) of Article 4(2) of Regulation (EC) No 1049/2001.
Article 4(3) - protection of the institution's decision-making process
The first paragraph of Article 4(3) of Regulation (EC) No 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’.
In the present cases, all the documents of the DSA case files have been gathered or drawn
up by the Commission in order to take decisions on the compliance with the DSA
Regulation. Since the decisions have not yet been taken, public disclosure of any of the
requested documents 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 the
documents, access to which is requested.
7
Furthermore, the Court recognized in
Odile Jacob15 and
EnBW16, 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.
As mentioned above, the requested documents relate to DSA 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 undertakings investigated. Moreover, the requested documents
would reveal the Commission's investigation strategy and a disclosure would therefore
undermine the protection of the purpose of the investigations and would also seriously
undermine the Commission's decision-making process. The Commission's services must be
free to explore all possible options in preparation of decisions free from external pressure.
In view of the foregoing, the requested documents are also manifestly covered in their 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.
4.
OVERRIDING PUBLIC 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 the 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 documents being withheld but we have not been able to identify such an
interest.
5.
CONFIRMATORY APPLICATION
In accordance with Article 7(2) of Regulation 1049/2001, you are entitled to make a
confirmatory application requesting the Commission to review this position.
Such 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 [1]
account (available only for initial requests submitted via the portal account),
15 Judgment of the Court of Justice of 28 June 2012,
Commission v Éditions Odile Jacob SAS, C-404/10
P, EU:C:2012:393, paragraph 130
16 Judgment of the Court of 27 February 2014,
Commission v EnBW Energie Baden-Württemberg, C-
365/12P, EU:C:2014:112, paragraph 114
[1]
https://www.ec.europa.eu/transparency/documents-request
8
or via 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,
Electronically signed
Roberto Viola
9
Electronically signed on 11/04/2024 19:19 (UTC+02) in accordance with Article 11 of Commission Decision (EU) 2021/2121
Document Outline
