a, EUROPEAN COMMISSION 3%, | Dimctr General | = 4 tee Competition DG 17 -06- 2011 Brussels, ‘COMP/C:3/PS/ac/Bundle 2011/063043 To: Mr Stephane Belad: E-Mail: adobeflexengineer@gmail.com Subject: Application for access to documents under Regulation 1049/2001 GESTDEM 2011/2275 relating to case COMP/C-3/39.806 ~ Apple iPhone OS Dear Mr Beladaci, Thank you for your e-mail dated 28 April 2011 (registered 2 May 2011 as GESTDEM No. 2011/2275) and for your subsequent clarification by e-mail, received on 19 May 2011, by which you requested access to documents under Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents (“Regulation 1049/2001”). 1, DOCUMENTS CONCERNED Your application requested all documents related to case COMP/C-3/39,806. The documents contained in the case file contain intemal Commission communications as well as correspondence with external legal entities. Having carefully examined all documents in the case file in the light of Regulation 1049/2001, I have come to the conclusion that all the documents that you request access to fall under the exceptions of Article 4 of that Regulation. I therefore regret to inform you that access to these documents must be refused 2, EXCEPTION COVERING THE DOCUMENTS REQUESTED: ARTICLE 4(3), PROTECTION OF THE COMMISSION'S DECISION-MAKING PROCESS Pursuant to the second sub-paragraph of Article 4(3) of Regulation 1049/2001, access to internal Commission documents containing preliminary consultations within the institution may be refused if disclosure would scriously undermine the institution's decision-making process. Internal documents on file make note of preliminary deliberations and intemal discussions within the Commission. The capacity of the Commission's services to express their views freely would be compromised if, when drafting such internal documents, they 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, OJ L145, 31.05.2001, page 43, ‘Commission européenne, 8-1049 Bruxelles / Europese Commissie, B-1049 Brussel - Belgium. Telephone: (92-2) 290 11 11 (Office: 5-70 6/117. Telephone: direct in (32-2) 2065040. Fax. (32-2) 2960128.would have to be mindful of the possibility that their critical opinions and suggestions could be disclosed to the general public. ‘This could lead the Commission's services to practice "self-censorship". Consequently the disclosure of such documents would call into question the autonomy of the intemal decision-making process and thereby undermine it. I must therefore decline your request for these documents. 3. EXCEPTION COVERING THE DOCUMENTS REQUESTED: ARTICLE 4(2), FIRST INDENT, PROTECTION OF COMMERCIAL INTERESTS 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 a legal person, ‘The commercial interest exception in this Article embodies the Commission's confidentiality obligation under Article 339 TFEU, meaning that the Commission must take all necessary precautions to ensure that the protection of information about undertakings covered by professional secrecy is not undermined. In its judgment in the Bank Austria’ case, the Court defined the notion of “professional secrecy" as information "known only to a limited number of persons and whose disclosure is liable fo cause serious harm to the person who has provided it or to third parties". ‘The Court further stated that "the assessment as to the confidentiality of a piece of information thus requires the legitimate interests opposing disclosure of the information to be weighed against the public interest that the activities of the Community institutions take place as openly as possible". ‘The requested documents - none of which are in the public domain - contain commercial and market-sensitive information with regard to the activities of the undertakings involved, the public disclosure of which would undermine the protection of their commercial interests. You will understand that I cannot be more specific as to the content of these documents as this would have the effect of partly revealing their content and thereby depriving the exception of its purpose. In accordance with Article 4(4) of Regulation 1049/2001 and with a view to assessing whether the exceptions in Article 4(1) or 4(2) apply, the Commission has consulted the relevant third parties. All parties concemed oppose the disclosure of any of their correspondence in the file on the basis of either the first, second or third indents of Article 4(2). I therefore regret to inform you that access to these documents must also be refused. 4, OVERRIDING PUBLIC INTEREST IN DISCLOSURE Pursuant to Articles 4(2) and 4(3) of Regulation 1049/2001, the exception to the right of access can be waived if there is an overriding public interest in disclosing the documents requested. The Commission has not identified such an overriding public interest nor is such a case made in your application. Consequently, the prevailing interest in this case lies in protecting both the Commission’s decision-making process and the commercial interests of the parties involved. ? Case T-403/05 MyTravel Group v Commission [2008] BCR-2007, paragraphs 50-52, > Case T-198/03, Bank Austria Creditanstalt AG v. Commission, [2006] ECR II-1429, para. 71 25. PARTIAL ACCESS Thave also considered granting partial access to the documents concerned in accordance with Article 4(6) of Regulation 1049/2001. However, since all parts of these documents are covered by the invoked exception, no such access can be granted. 6, MEANS OF REDRESS If you would like this position to be reviewed, you should write to the Commission's Secretary-General at the address below. You have 15 working days within which to do so from receipt of this letter, after which your initial request will be deemed to have been withdrawn, The Sceretary-General will inform you of the result of the review within 15 working days from the registration of your request and shall either grant you access to the documents or confirm the refusal. In the case of the latter, you will be informed of which further options are open to you. Supplementary correspondence should be sent to the following address: ‘The Secretary-General ‘European Commission B-1049 BRUSSELS Yours sincerely, aes Alexander ITALIANER