EUROPEAN COMMISSION
Competition DG
The Director General
Brussels, 27 May 2024
COMP/A1
Bram Vranken
Corporate Europe Observatory
Rue d’Edimbourgh 26
1050 Brussels
By e-mail
ask+request-14458-
xxxxxxxx@xxxxxxxx.xxx
Subject: EASE 2024/1945 – Your request of 9 April 2024 for access to documents
pursuant to Regulation (EC) No. 1049/2001
Dear Mr Vranken,
Thank you for your application registered on 9 April 2024 under EASE number
2024/1945, in which you request access to documents in accordance with Regulation (EC)
No. 1049/20011 ("Regulation 1049/2001").
1.
SCOPE OF YOUR APPLICATION
In your message, you requested access to
- all documents - including but not limited to e-mails, reports, minutes, etc. - related to meetings
with companies, think tanks, law firms, consultancy firms, trade and industry associations on the
new guidelines on the application of Article 102 TFEU and
- all correspondence including attachments (i.e. any emails, correspondence or telephone call
notes) with companies, think tanks, law firms, consultancy firms, trade and industry associations
on the new guidelines on the application of Article 102 TFEU
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
2. IDENTIFICATION AND ASSESSMENT OF THE RELEVANT DOCUMENTS
We have identified the following documents as falling within the scope of your request.
Please note that parts of some of these documents do not relate to the new guidelines on
exclusionary abuses by dominant undertakings under Article 102 TFEU. These parts fall
outside the scope of your request and were therefore redacted (documents 2, 4, 10, 11, 12,
16, 17, 18, 22, 23, 26, 27, 29, 30 and 31).
Meeting of 26 October 2023 with GSMA
1. GSMA position paper on the Guidance on exclusionary abuses
2. Presentation on 102 Guidelines review meeting
3. Emails setting up 26 October 2023 meeting
Meeting of 18 October 2023 with ETNO
4. Presentation on 102 Guidelines review
5. Email of 20 October 2023 sending presentation
6. Emails setting up 18 October 2023 meeting
7. Email of 20 February 2024 sending ETNO position paper on Art. 102 Guidelines
7a ETNO position paper
8. Redline version of amended Guidance paper
9. Email of 25 October replying to email of 20 October 2023
Meeting of 25 April 2023 with the European Cement Association
10. Emails setting up meeting of 25 April 2023
11. Briefing for the meeting
12. Follow up email of 11 May 2023
Meeting of 11 December 2023 with ECLF
13. Email of 24 April 2023 with submission of position paper on 102 Guidelines
14. Position paper on 102 Guidelines
15. Slides presentation for 11 December 2023 meeting
Meeting of 26 September 2023 with ECLF
16. Article 102 briefing for the meeting with ECLF
17. General briefing for the meeting with ECLF
18. Emails setting up the meeting with ECLF on 26 September 2023
Luncheon with Spanish Chamber of Commerce of 18 October 2023
19. Speech for Spanish Chamber of Commerce
20. Emails setting up meeting of 18 October 2023
Meeting with BDI member of board of 14 November 2023
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21. Emails setting up the meeting
22. Briefing for meeting with board member of BDI
Meeting with Amazon of 7 June 2023
23. Briefing for meeting with Amazon on 7 June 2023
24. Email setting up meeting
Meeting with BDI Competition Committee of 23 November 2023
25. Agenda of meeting
26. Email setting up the meeting of 23 November 2023
27. Briefing for the BDI competition committee meeting
Meeting of 20 February 2024 with ICC
28. Email setting up meeting of 12 December 2023 (subsequently cancelled)
29. Email setting up new meeting of 20 February 2024
30. Agenda of meeting
31. Briefing for the ICC meeting
In addition, your request may cover documents that were submitted by stakeholders in the
context of the Call for Evidence on the Guidelines on exclusionary abuses by dominant
undertakings and that the Commission published on 27 March 2023 on its website.
All responses received in the context of the Call for Evidence can be accessed on the
following websites:
-
https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/13796-
EU-competition-law-guidelines-on-exclusionary-abuses-by-dominant-
undertakings_en
and
-
https://competition-policy.ec.europa.eu/antitrust-and-
cartels/legislation/application-article-102-tfeu_en which contains a link to three
additional submission received that are available here
https://competition-
policy.ec.europa.eu/document/download/eaa8db48-d50a-49cd-8dfe-
22e4890da7c5_en?filename=2023_Article_102_Stakeholders_Responses.zip.
3. 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 some of the requested
documents at this stage might undermine 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, as "
the purpose of the regulation is to guarantee access
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for everyone to public documents and not just access for the requesting party to documents
concerning it".2
EXCEPTIONS APPLICABLE TO THE DOCUMENTS IDENTIFIED ABOVE UNDER SECTION 2
i. Article 4(1)(b), Protection of privacy and integrity of individuals
With regard to the documents 3, 4, 5, 6, 7, 7a, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20, 21,
22, 23, 24, 25, 26, 27, 28, 29, 30, 31 listed above, a complete disclosure of the identified
documents is prevented by the exception concerning the protection of privacy and the
integrity of the individual outlined in Article 4(1)(b) of Regulation (EC) No 1049/2001,
because they contain the following personal data:
-
the names/initials and contact information of Commission staff members not
pertaining to the senior management;
-
the names/initials and contact details of other natural persons;
-
handwritten signatures/abbreviated signatures of natural persons;
-
other information relating to an identified or identifiable natural person (namely,
their specific function/job title).
Article 9(1)(b) of Regulation 2018/17253 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) of Regulation (EC) No
1049/2001, access cannot be granted to the personal data contained in the requested
documents as enumerated above, 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(3): protection of the decision-making process
Pursuant to Article 4(3), first subparagraph of Regulation 1049/2001, access to the
documents drawn by the Commission for internal use or received by the Commission,
which relates to a matter where the decision has not been taken by the Commission, shall
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.
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be refused if disclosure of the documents would seriously undermine the Commission’s
decision-making process.
In the present case, parts of documents 16 and 17 (namely the sections labelled
“defensives”) were drafted in the context of the internal deliberations and reflections on
the Guidelines on the application of Article 102 of the Treaty on the Functioning of the
European Union to abusive exclusionary conduct by dominant undertakings, on which a
final decision has not yet been taken.
The Commission services must be free to explore all possible options with regard to
ongoing initiatives, policy processes and implementation of legislation. The risk of
disclosing sensitive information regarding the Commission services’ preliminary views
while the decision-making processes on the issues at question is still ongoing would deter
them from freely expressing their opinions. Speculations and misinterpretations by the
public on the views, positions, and considerations put forward during the decision-
making process would affect the exploration of different policy options and unduly
restrict the Commission’s internal space to think, exposing the Commission to external
pressure. Disclosure of these parts of the document would therefore seriously undermine
the ongoing decision-making process. This risk is reasonably foreseeable and not purely
hypothetical.
More specifically, disclosure would put at risk the Commission’s decision process
insofar as the defensives contain the initial position on certain issues and how the
Commission contemplates addressing them in the context of a first draft of the
Guidelines on the application of Article 102 of the Treaty on the Functioning of the
European Union to abusive exclusionary conduct by dominant undertakings to be
published for consultation. The disclosure could undermine the Commission’s ability to
defend, and potentially change, its position as regards specific issues.
Pursuant to Article 4(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
applicant) and, secondly, overriding,
i.e. in this case it must outweigh the interest
protected under Article 4(3) of Regulation 1049/2001.
In your application you have not presented any arguments that would establish an
overriding public interest to disclose in full document 16 and 17 to which access is
hereby partially denied pursuant to Article 4(3) of Regulation 1049/2001.
Accordingly, the redacted parts of the requested documents 16 and 17 labelled
“defensives” are covered by the exception laid down in Article 4(3), first subparagraph of
Regulation 1049/2001 and cannot be disclosed.
4. REUSE OF DOCUMENTS
With respect to documents 1, 2, 4, 7a, please note that documents originating from third
parties are disclosed to you based on Regulation (EC) No 1049/2001. However, this
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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
originator, who may hold an intellectual property right on them. The European
Commission does not assume any responsibility from their reuse.
With respect to document 8, please note that 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 thus reuse document 8 disclosed 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 document. Please note that the
Commission does not assume liability stemming from the 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 t
o: xxxxxxxxxx@xx.xxxxxx.xx.
Yours faithfully,
e-signed
Olivier GUERSENT
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