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EUROPEAN COMMISSION
Competition DG
The Director General
Brussels, 14 November 2023
COMP/J
Samuel Stolton
Bloomberg
International Press Centre
1041 Brussels
By e-mail
ask+request-13824-
xxxxxxxx@xxxxxxxx.xxx
Subject:  EASE  2023/6641  –  Your request of 8 November  2023  for access to
documents pursuant to Regulation (EC) No. 1049/2001 relating to a meeting
between Commissioner Didier Reynders and Bytedance
Dear Sir,
Thank you for your application of 8 November 2023, registered on the same day under the
above-mentioned reference number, concerning a meeting between Commissioner Didier
Reynders and Bytedance CEO Shou Zi Chew,  which took place on 8 November  2023,
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 which are part of the
administrative file of DG Competition concerning the above-mentioned meeting:
General communications of any nature, writ en material of any kind, consultation notes,
email correspondences, attendance lists, agendas, background papers, briefing papers,
transcriptions of meetings, readouts of meetings, summaries of meetings, briefings for
meetings, etc.
The documents you request access to form part of the case file in a pending investigation
under Regulation (EU) 2022/19252 (the Digital Markets Act, hereinafter the ‘DMA’), in
which the procedure may not be considered finalized yet, as long as the decision adopted by
the Commission is still subject to possible appeal which might prompt the Commission to
reconsider its decision and reopen the case.
1  Regulation (EC) N° 1049/2001 regarding public access to European Parliament, Council and
Commission documents, OJ L145 of 31.5.2001, p. 43
2  Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on
contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU)
2020/1828 (Digital Markets Act), OJ L 265 of 12.10.2022, p. 1.
Commission européenne, B-1049 Bruxelles / Europese Commissie, B-1049 Brussel - Belgium

link to page 2 link to page 2 link to page 2 link to page 2 link to page 2 Having carefully examined your request in the light of Regulation 1049/2001, I have come
to the conclusion that the documents you have requested access to fall under the exceptions
of Article 4 of Regulation 1049/2001. Access to these  documents, therefore, has to be
refused. Please find below the detailed assessment as regards the application of the
exceptions of Article 4 of Regulation 1049/2001.
2. APPLICABLE EXCEPTIONS
Article 4(2), first indent, protection of commercial interests
Article 4(2), third indent, protection of the purpose of investigations
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.
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.
In its judgment in Case C-404/10 P Commission v Odile Jacob3, the Court of Justice held
that for the purposes of interpretation of the exceptions in Article 4(2), first and third
indent of Regulation 1049/2001, there is a general presumption that disclosure of
documents exchanged between the Commission and notifying and other (third) parties in
merger procedures in principle undermines the protection of the commercial interests of
the undertakings involved and also the protection of the purpose of investigations related
to the merger control proceedings.
The Court ruled that, by analogy to the case law in cases TGI4,  Bavarian Lager5  and
API6,  Regulation 1049/2001 has to be interpreted and applied in a manner which is
compatible and coherent with other specific rules on access to information. The Court
referred in particular to the Merger Regulation and emphasised that it not only governs a
specific area of European Union law, but is also designed to ensure respect for
professional secrecy and is, moreover, of the same hierarchical order as Regulation
1049/2001 (so that neither of the two set of rules prevails over the other). The Court
stated that, if documents in the merger case-files were to be disclosed under Regulation
1049/2001 to persons other than those authorised to have access according to the merger
control legislation, the scheme instituted by that legislation would be undermined. In that
regard, the Court ruled that this presumption applies regardless of whether the request for
access concerns merger control proceedings which have already been closed or
proceedings which are pending.
Based on the same  reasoning, the Court recognized in Agrofert7  that general
presumptions of non-disclosure are applicable to merger control proceedings, because the
legislation which governs those proceedings also provides for strict rules regarding the
treatment of information obtained or established in the context of such proceedings. The
disclosure of such documents would undermine the procedural rules system set up by the
3
Case C-404/10 P, Commission v Odile Jacob, ECLI:EU:C:2012:393.
4
Case C-139/07 P, Commission v Technische Glaswerke Ilmenau, ECLI:EU:C:2010:376.
5
Case C-28/08 P, Commission v Bavarian Lager, ECLI:EU:C:2010:378.
6
Cases C-514/07 P,  C-528/07 P and C-532/07 P,  Sweden and Others v API and Commission,
ECLI:EU:C:2010:541.
7
Case C-477/10 P, Commission v Agrofert Holding, ECLI:EU:C:2012:394, paragraph 59.
2

link to page 3 link to page 3 link to page 3 link to page 3 link to page 3 Merger Regulation, and in particular the rules on professional secrecy and access to the
file.
In the EnBW case, the Court of Justice held that there is, with regard to the exception
related to the protection of the purpose of investigations, a general presumption that
disclosure of documents in cases regarding the application of Articles 101 and 102 TFEU
(antitrust cases), would undermine the purpose of the access system introduced by
Regulations No 1/2003 and 773/20048.
As ruled by the Court of Justice in the Agrofert case9 for merger proceedings, and by the
General Court in the Bitumen  case10  for antitrust proceedings, if a document is not
accessible under the "access to file procedure", it cannot be made available to the public
under Regulation 1049/2001. In essence, Regulations 1/2003 and 773/2004 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 respect for 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).
Furthermore,  in the  recent  Múka  case, the General Court recalled that, as interested
parties other than those directly concerned in State aid control procedures (the Member
States) do not have the right to consult the documents in the Commission’s
administrative file, there is a general presumption that disclosure of documents in the
administrative file undermines, in principle, the protection of the purpose of investigation
activities, and also held that this presumption applies regardless of whether the request
for access concerns a control procedure which has already been closed or one which is
pending11.
The same reasoning used in the previously mentioned case law to establish  a general
presumption of non-disclosure for documents belonging to merger, antitrust and state aid
case files is  fully applicable to  the disclosure of documents exchanged between the
Commission and notifying and other (third) parties in the enforcement of the DMA and
preparation of enforcement, given that this Regulation contains very similar provisions as
regards both the obligation of professional secrecy and the access to file procedure12. If
documents in the DMA case files were to be disclosed under Regulation 1049/2001 to
persons other than those authorised to have access to them according to the DMA, the
procedural scheme instituted by the latter would be undermined.
Consequently, and by analogy to what has been repeatedly recognized by the case-law in
the context of merger, antitrust and state aid investigations,  there is a general
presumption that disclosure of documents in DMA case files in principle undermines the
protection of the  commercial interests of the undertakings involved and also the
protection of the purpose of investigations related to the DMA  proceedings, and this
presumption  applies  regardless of whether the request for access concerns DMA
proceedings which have already been closed or proceedings which are pending.
Natural and legal persons submitting information in the context of the DMA  have a
legitimate expectation that –  apart from the publication of the non-confidential
summaries provided for in Articles 8(6) and 18 (5) and (6) of the DMA and of the non-
8
Case C-365/12 P,  Commission v EnBW Energie Baden-Württemberg,  ECLI:EU:C:2014:112,
paragraph 88.
9
Agrofert, paragraphs 61-63.
10
Case T-380/08, Netherlands v Commission, ECLI:EU:T:2013:480, paragraphs 32-40
11
Case T-214/21, Múka v Commission, ECLI:EU:T:2022:607, paragraphs 44 and 55.
12
See, in this regard, Articles 34(4) and 36 of the DMA.
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link to page 4 confidential versions of final decisions  pursuant to Article 44 of the DMA  –  the
information they supply to the Commission on an obligatory or voluntary basis under the
DMA will not be publicly disclosed.
The documents requested by you, as specified above, are part of the file in a DMA case,
have not been brought into the public domain and are known only to a limited number of
persons. In particular, the documents you request access to contains commercial and
market-sensitive information regarding the activities of the involved undertakings whose
public disclosure would undermine the lat ers' commercial interests. This information
concerns in particular commercial strategies. Disclosure of these  documents  could bring
serious harm to the undertakings' commercial interests.
Moreover, and by analogy to what the General Court ruled in the Bitumen13 case, certain
sections of the final decisions (including information supplied by the parties and third
parties) may be covered by the exceptions from public access and an investigation of the
Commission cannot be considered as closed if there might be circumstances which might
prompt the Commission to reopen the case.
Undertakings 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.
Undertakings also have a  legitimate interest that the information is used only for the
purposes of the Commission proceedings in application of the DMA. It is for this reason
that Article 36(1)  of the DMA  provides that information collected pursuant to this
Regulation is used only for the purposes of this Regulation, namely the administrative
proceedings carried out under its provisions.
Also, pursuant to Article 36(4) of the DMA, information covered by professional secrecy
submitted to the Commission in the context of this Regulation cannot be disclosed to the
public.
These exceptions aim at protecting the Commission's capacity to ensure that undertakings
comply with their obligations 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.
Careful respect by the Commission of its obligations  regarding professional secrecy
creates a climate of mutual confidence between the Commission and undertakings, under
which the latter cooperate by providing the Commission with the information necessary
for its investigations.
In these circumstances, disclosure despite the protection provided for by the DMA,
would lead to a situation where undertakings subject to investigations and potential
informants and complainants would lose their trust in the Commission's reliability and in
the sound administration of DMA  files. These parties would then become reluctant to
cooperate with the Commission and would reduce their cooperation to a minimum. This,
in turn, would jeopardise the Commission's authority and lead to a situation where the
13  Case T-380/08,  Kingdom of the Netherlands v European Commission  (Bitumen),
ECLI:EU:T:2013:480.
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link to page 5 link to page 5 Commission would be unable to properly carry out its task of enforcing the DMA.
Consequently, the effective enforcement of the DMA would be undermined.
It thus follows that the requested documents  are covered by a general presumption of
non-disclosure of documents in DMA case-files.
In view of the foregoing the requested documents are manifestly covered in their entirety by
the exception set out in Article 4(2), first and third indent of Regulation 1049/2001.
Article 4(3) protection of the institution's decision-making process
Pursuant to Article 4(3) of Regulation 1049/2001, 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.
In the present case, all the documents of the case file have been gathered or drawn up by
the Commission in order to take a decision on Bytedance’s compliance with the DMA.
Since the decision has 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 Regulation 1049/2001 is manifestly
applicable to the documents, access to which is requested.
Furthermore, the Court recognized in Odile Jacob14 and EnBW15, 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 a pending DMA investigation and
contain a preliminary assessment of the facts and other information from which the
direction of the investigation, 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 their disclosure would
therefore undermine the protection of the purpose of the investigation 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 a decision 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.
The  general  presumption recognised in the case-law cited above  does not exclude the
possibility of demonstrating that certain documents, of which disclosure is sought, are not
covered by the presumptions. However, you have not demonstrated this in your application.
14  Odile Jacob, paragraph 130.
15  EnBW, paragraph 114.
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link to page 6 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 and third 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
I have also considered the possibility of granting partial access to the documents for
which access has been denied in accordance with Article 4 (6) of Regulation 1049/2001.
However, the general presumption of non-disclosure invoked above also applies to
partial disclosure for all the documents concerned and, consequently, no partial access
can be granted.
5.  MEANS OF REDRESS
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 a confirmatory application should be addressed to the Secretariat-General of the
Commission within 15 working days upon receipt of this let er. You can submit it via your
EASE portal16 account.

Yours faithfully,

(e-signed)
Olivier GUERSENT

16  https://www.ec.europa.eu/transparency/documents-request

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Document Outline