JUDGMENT OF THE GENERAL COURT (First Chamber)
25 February 2026 (*)
( Access to documents – Regulation (EC) No 1049/2001 – Regulation (EU) 2022/1925 – Documents relating to designation as a gatekeeper – Refusal of access – Obligation to state reasons – Exception relating to the protection of court proceedings – Exception relating to the protection of the purpose of inspections, investigations and audits – Overriding public interest – Obligation to state reasons )
In Case T‑433/24,
Edward William Batchelor, residing in Brussels (Belgium), represented by L.‑M. Osepciu, Barrister-at-Law,
applicant,
v
European Commission, represented by M. Burón Pérez and A.‑C. Simon, acting as Agents,
defendant,
THE GENERAL COURT (First Chamber),
composed, at the time of the deliberations, of M. Brkan, acting as President, I. Gâlea (Rapporteur) and T. Tóth, Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure,
having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,
gives the following
Judgment
1        By his action under Article 263 TFEU, the applicant, Mr Edward William Batchelor, seeks the annulment of Commission Decision C(2024) 3818 final of 2 June 2024 rejecting his confirmatory application for access to documents (‘the contested decision’) under 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 2001 L 145, p. 43).
Background to the dispute
2        ByteDance Ltd operates, with the companies which it controls directly or indirectly, inter alia the digital platform TikTok, enabling its users to search for, view and distribute videos, as well as to interact, communicate and share content with other users.
3        Following pre-notification discussions, provided for in recital 2 of Commission Implementing Regulation (EU) 2023/814 of 14 April 2023 on detailed arrangements for the conduct of certain proceedings by the Commission pursuant to Regulation (EU) 2022/1925 of the European Parliament and of the Council (OJ 2023 L 102, p. 6), ByteDance submitted, on 3 July 2023, a notification to the European Commission, in accordance with the first subparagraph of Article 3(3) of 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 2022 L 265, p. 1; ‘the DMA’).
4        By letter of 26 July 2023, the Commission informed ByteDance of its preliminary view concerning, first, the designation of ByteDance as a gatekeeper, in accordance with Article 3(4) of the DMA, and, second, the classification of TikTok as an online social networking service capable of constituting an important gateway for business users to reach end users, within the meaning of Article 3(1)(b) of the DMA.
5        By letter of 2 August 2023, the applicant replied to the preliminary view.
6        On 5 September 2023, the Commission adopted Decision C (2023) 6102 final, designating ByteDance as a gatekeeper, in accordance with Article 3 of the DMA; in that decision, the Commission considered (i) that TikTok was an online social networking service and, consequently, a core platform service; (ii) that ByteDance met the thresholds laid down in Article 3(2) of the DMA, as regards TikTok, which gave rise to the presumption that the requirements under Article 3(1) of the DMA, relating to the designation of a gatekeeper, were satisfied; and (iii) that the arguments put forward by ByteDance, in accordance with the first subparagraph of Article 3(5) of the DMA, to rebut the presumptions laid down in Article 3(2) of the DMA, were not sufficiently substantiated to call into question manifestly those presumptions. Consequently, and in accordance with the second subparagraph of Article 3(5) of the DMA, it rejected those arguments without initiating a market investigation pursuant to Article 17(3) of the DMA (‘the designation decision’).
7        On 16 November 2023, ByteDance brought an action for annulment of the designation decision and, on 20 November 2023, lodged an application for interim measures seeking suspension of the effects of that decision (‘the court proceedings’). The applicant acted as legal counsel for ByteDance in the court proceedings. The application for interim measures and the action for annulment were dismissed.
8        By request of 17 November 2023, the applicant sought access, for the period 14 September 2022 to 5 September 2023, to ‘any communications including minutes or reports of any meetings between:
(i)      The members of the Cabinets of Executive Vice President Vestager and Commissioner Breton; and
(ii)      Officials of the relevant teams responsible for implementation of [the DMA] at the Directorates General for Competition and for Communications Networks, Content and Technology and Executive Vice President Vestager’s or Commissioner Breton’s Cabinets;
in each case, relating to the potential designation of [ByteDance] as a gatekeeper under Article 3 DMA’ (‘the requested documents’).
9        On 12 January 2024, the Commission refused access to those documents, on the basis of the exceptions laid down, respectively, in the first indent of Article 4(2) of Regulation No 1049/2001, relating to the protection of commercial interests, in the third indent of Article 4(2) of that regulation, relating to the protection of the purpose of investigations, and in the second subparagraph of Article 4(3) of that regulation, relating to the protection of the institution’s decision-making process.
10      By confirmatory application of 31 January 2024, the applicant requested a review of that initial response.
11      In the contested decision, the Commission stated that it had identified 15 documents falling within the scope of the applicant’s request and classified them in the following categories:
‘1.      Minutes of meetings between officials of the teams responsible for implementation of [the DMA] at the Directorate-General for Competition and at Directorate-General for Communications Networks, Content and Technology and the Members of Executive Vice President Vestager’s and Commissioner Breton’s Cabinets[,] relating to the potential designation of ByteDance as a gatekeeper under Article 3 DMA. The Directorate-General for Competition identified 3 documents.
2.      Notes prepared by Directorate-General for Competition and Directorate-General for Communications Networks, Content and Technology for Cabinet Vestager and Cabinet Breton relating to the potential designation of ByteDance as a gatekeeper under Article 3 DMA, including their respective cover emails. The Directorate-General for Competition identified 11 documents.
3.      Presentation prepared by the Directorate-General for Competition to Cabinet Breton circulated for the purpose of a meeting with Executive Vice President Vestager on rebuttals. The Directorate-General for Competition identified one document.’
12      The contested decision states that the requested documents were internal documents forming part of the administrative investigation file in Case DMA.100040, which were drawn up during the pre-notification discussions with ByteDance, with a view to ByteDance’s notification under Article 3(3) of the DMA and in preparation for the designation decision. Access was refused on the basis of the exceptions laid down in the second and third indents of Article 4(2) of Regulation No 1049/2001, those provisions concerning, respectively, the protection of court proceedings, and the protection of the purpose of investigations.
Forms of order sought
13      The applicant claims that the Court should:
–        annul the contested decision;
–        order the Commission to pay the costs.
14      The Commission contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
15      In support of his action, the applicant raises five pleas in law, alleging (i) infringement of the third indent of Article 4(2) of Regulation No 1049/2001, concerning the exception relating to the protection of the purpose of investigations; (ii) infringement of the second indent of Article 4(2) of Regulation No 1049/2001 relating to the protection of court proceedings; (iii) infringement of the last limb of Article 4(2) of Regulation No 1049/2001 resulting from the failure to find that there was an overriding public interest in disclosure; (iv) infringement of Article 4(6) of Regulation No 1049/2001 resulting from the refusal to grant partial access to the requested documents; and (v) infringement of the obligation to state reasons.
16      The Court considers it appropriate to examine, first of all, the fifth plea, alleging infringement of the obligation to state reasons, then the second plea, alleging infringement of the second indent of Article 4(2) of Regulation No 1049/2001, and, lastly, the other pleas.
The fifth plea in law, alleging infringement of the obligation to state reasons
17      In the first place, according to the applicant, the statement of reasons for the contested decision is insufficient, in that the Commission did not explain how disclosure would harm its investigations; the Commission merely stated that its obligation to respect professional secrecy creates a climate of confidence. In the second place, the Commission did not indicate the list of relevant documents or how those documents are covered by the exceptions laid down in the second and third indents of Article 4(2) of Regulation No 1049/2001. In the third place, the applicant complains that the Commission did not explain how it considers that the general presumption of non-disclosure cannot be rebutted and how his request would harm the purpose of investigations. In the fourth place, the Commission did not indicate whether it examined each document in order to determine whether partial disclosure was possible.
18      The Commission disputes the applicant’s arguments.
19      It must be noted that, according to settled case‑law, the statement of reasons required by Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure, in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent court to exercise its power of review. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether it meets the requirements of that article must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 14 May 2025, Smart Kid v Commission, T‑227/24, not published, EU:T:2025:488, paragraph 19 and the case-law cited).
20      In the case of a request for access to documents, where the institution in question refuses such access, it must demonstrate in each individual case, on the basis of the information at its disposal, that the documents to which access is sought do indeed fall within the exceptions listed in Regulation No 1049/2001 (see judgment of 26 March 2020, Bonnafous v Commission, T‑646/18, EU:T:2020:120, paragraph 23 and the case-law cited). However, it may be impossible to give reasons justifying the need for confidentiality in respect of each individual document without disclosing the content of the document and, thereby, depriving the exception of its very purpose (see judgment of 5 December 2018, Falcon Technologies International v Commission, T‑875/16, not published, EU:T:2018:877, paragraph 68 and the case-law cited).
21      Under that case-law, it is therefore for the institution which has refused access to a document to provide a statement of reasons from which it is possible to understand and ascertain, first, whether the requested document does in fact fall within the scope of the exception relied on and, second, whether the need for protection relating to that exception is genuine.
22      Accordingly, the statement of reasons for refusing access to documents must contain, for each category of documents concerned at least, the specific reasons why the institution in question considered that disclosure of the documents requested falls within the scope of one of the exceptions laid down by Regulation No 1049/2001 (see judgment of 24 May 2011, NLG v Commission, T‑109/05 and T‑444/05, EU:T:2011:235, paragraph 84 and the case-law cited).
23      It is in the light of those factors that it must be determined whether the Commission satisfied the requirements resulting from the obligation to state reasons.
24      In the present case, it should be noted that, in the first place, as regards the risk of harm to investigations, it is apparent from section 2.1.1 of the contested decision that the Commission explained (i) why the designation procedure could be treated as an investigation; (ii) how the preliminary and internal nature of the documents to which access was requested had an impact on the fact that their disclosure could undermine the Commission’s ability to collect highly sensitive commercial information and to conduct investigations in a climate of mutual trust; and (iii), in order to support its arguments, how the designation procedure is, in its view, comparable to other types of investigations which it has conducted in competition matters, so that the reasons justifying the protection of the purpose of investigations and the applicability of a general presumption of confidentiality are similar.
25      In the second place, as regards the failure to list the documents protected by the exceptions referred to in the second and third indents of Article 4(2) of Regulation No 1049/2001, it is apparent from section 2.1.2 of the contested decision that all the documents in question had been drawn up for the purposes of internal Commission meetings which took place in the context of the pre-notification discussions with ByteDance in accordance with Article 3(3) of the DMA and in the context of the designation decision. In addition, it must be noted that, although the Commission did not list those documents, it stated that it had identified 15 documents falling within the scope of the request and had classified them in three categories (see paragraph 11 above).
26      In the third place, as regards the taking into consideration of the observations made by the applicant to rebut the general presumption of non-disclosure of the documents relating to the designation of ByteDance as a gatekeeper, it should be noted that, in section 2.1.1 of the contested decision, the Commission responded in detail to the applicant’s arguments.
27      In the fourth place, as regards the applicant’s request for partial access, it is apparent not only from Section 4 of the contested decision, but also from that decision as a whole, that the Commission ruled out the possibility of granting partial access to the requested documents, taking the view that it was impossible to identify parts of those documents which were not covered by the exceptions laid down in the second and third indents of Article 4(2) of Regulation No 1049/2001. Thus, the Commission explained to the requisite legal standard the reasons why it was impossible to grant partial access as requested by the applicant.
28      In the light of the foregoing, it must be held that the Commission did not fail to fulfil its obligation to state reasons. Consequently, the fifth plea must be rejected.
The second plea in law, alleging infringement of the second indent of Article 4(2) of Regulation No 1049/2001
29      By his second plea, the applicant claims that the Commission’s refusal to disclose the requested documents infringes the second indent of Article 4(2) of Regulation No 1049/2001, since, first, there is no close connection between those documents and the court proceedings and, second, disclosure does not undermine, in a foreseeable and not purely hypothetical manner, the court proceedings. The applicant adds that it is not apparent from the contested decision that the requested documents form the basis of the Commission’s defence, but only that they were produced in the context of an administrative file, which subsequently gave rise to a dispute.
30      The applicant states that the Commission was wrong to consider that the mere fact that documents were part of the designation process was sufficient to demonstrate that they contain legal positions or are directly related to the Commission’s defence in the context of the court proceedings. In the applicant’s view, the Commission has not demonstrated that the requested documents contain legal advice or refer to the Commission’s legal positions, or that they are related to the court proceedings in question.
31      Furthermore, according to the applicant, it is not apparent from the contested decision that the requested documents served as the basis for the preparation of the Commission’s defence, but that they were produced in the context of an administrative file which was subsequently the subject of a dispute. In that regard, he submits that the fact that those documents might have served as a basis for the preparation of the defence does not satisfy the criteria established by the case-law for the determination of whether there is a connection with ongoing court proceedings. Furthermore, he argues, the Commission has attempted to supplement the contested decision with its defence, by way of general and vague assertions.
32      Lastly, the applicant submits that the Commission must demonstrate that disclosure of the requested documents would reveal a preliminary position on legal or strategic issues liable to undermine the Commission’s position in the dispute in question.
33      The Commission disputes the applicant’s arguments.
34      Under the second indent of Article 4(2) of Regulation No 1049/2001, the institutions are to refuse access to a document where disclosure would undermine the protection of court proceedings, unless there is an overriding public interest in disclosure.
35      According to the case-law, the protection of those proceedings is explained by the need to ensure compliance with the principle of equality of arms and the sound administration of justice (see, to that effect, judgment of 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 85).
36      As regards observance of the principle of equality of arms, it has been held, inter alia, that, if the content of documents setting out an institution’s position in a dispute were to form the subject of public debate, criticism of them could unduly influence the position defended by the institution before the courts in question (see judgment of 6 February 2020, Compañía de Tranvías de la Coruña v Commission, T‑485/18, EU:T:2020:35, paragraph 39 and the case-law cited).
37      In addition, the granting of access to documents pertaining to an institution or a Member State’s position in ongoing court proceedings to another party could upset the vital balance between the parties to a dispute, a state of balance which is at the root of the principle of equality of arms, inasmuch as only the institution or Member State concerned by a request for access to documents, and not all the parties to the proceedings, would be bound by the obligation of disclosure. Compliance with the principle of equality of arms is, however, essential, since it is a corollary of the very concept of a ‘fair trial’ (see judgment of 24 January 2024, Veritas v Commission, T‑602/22, EU:T:2024:26, paragraph 55 and the case-law cited).
38      As regards the sound administration of justice and the integrity of court proceedings, the exclusion of judicial activities from the scope of the right of access to documents is justified in the light of the need to ensure that, throughout the court proceedings, the exchange of argument by the parties and the deliberations of the court concerned in the case before it take place in an atmosphere of total serenity, without any external pressure on judicial activities (see judgment of 12 October 2022, Saure v Commission, T‑524/21, EU:T:2022:632, paragraph 38 and the case-law cited).
39      Furthermore, it has already been held that it follows from the wording and the very existence of the exception relating to the protection of court proceedings in the second indent of Article 4(2) of Regulation No 1049/2001 that the EU legislature did not intend to exclude the institutions’ litigious activities from the public’s rights of access, but that it provided, in that regard, that the institutions are to refuse to disclose documents relating to court proceedings where such disclosure would undermine the proceedings to which those documents relate (see, to that effect, judgment of 27 February 2015, Breyer v Commission, T‑188/12, EU:T:2015:124, paragraph 43).
40      In order for the exception to apply, it is necessary that the requested documents, at the time of adoption of the decision refusing access to those documents, should have a relevant link with a dispute pending before the EU Courts, in respect of which the institution concerned is invoking that exception, and that disclosure of those documents, even though they were not drawn up in the context of pending court proceedings, should compromise the principle of equality of arms and, potentially, the ability of the institution concerned to defend itself in those proceedings. In other words, it is necessary that those documents should reveal the position of the institution concerned on contentious issues raised during the court proceedings relied upon (judgment of 15 September 2016, Philip Morris v Commission, T‑796/14, EU:T:2016:483, paragraph 88).
41      In that case, although those documents have not been drawn up in the context of specific court proceedings, the integrity of the court proceedings concerned and the principle of equality of arms between the parties could be seriously compromised if parties were to benefit from privileged access to internal information belonging to the other party and closely connected to the legal aspects of pending or potential, but imminent, proceedings (see judgment of 24 January 2024, Veritas v Commission, T‑602/22, EU:T:2024:26, paragraph 58 and the case-law cited).
42      In the present case, it is apparent from the contested decision that the requested documents were internal documents forming part of the administrative investigation file in Case DMA.100040, which were drawn up during the pre-notification discussions with ByteDance, in preparation for that company’s notification, under Article 3(3) of the DMA, and in preparation for the designation decision.
43      In particular, the request for access, itself, submitted by the applicant (see paragraph 8 above), refers to documents concerning ‘any communications including minutes or reports of any meetings’ between the members of the cabinets of two Members of the Commission and the officials of the teams responsible for the implementation of the DMA within the Directorates-General supervised by those Members of the Commission. In addition, it should be recalled that the request for access refers to documents ‘in each case, relating to the potential designation of [ByteDance] as a gatekeeper under Article 3 DMA’.
44      Following the adoption of the designation decision, ByteDance brought an action before the General Court on 16 November 2023 for annulment of that decision.
45      On 2 June 2024, the date on which the contested decision was adopted, the proceedings before the Court in the case referred to in paragraph 44 above were ongoing.
46      As is apparent from the contested decision, although the documents in question were not drawn up specifically in the context of those court proceedings, they cannot, however, be dissociated from those proceedings.
47      In that regard, it must be recalled that the categories in which the Commission classified the documents which it identified, following the applicant’s request, concern (i) minutes of internal meetings ‘relating to the potential designation of ByteDance as a gatekeeper under Article 3 DMA’; (ii) notes prepared by the Directorates-General in question for the corresponding members of the Commission ‘relating to the potential designation of ByteDance as a gatekeeper under Article 3 DMA’; and (iii) a ‘presentation prepared by the Directorate-General for Competition to Cabinet Breton circulated for the purpose of a meeting with Executive Vice President Vestager on rebuttals’ (see paragraph 11 above).
48      First, it is apparent from the contested decision that those are internal documents drawn up during discussions prior to ByteDance’s notification and which were used as a basis for the preparation of the Commission’s defence in the court proceedings in response to the arguments put forward by the applicant in those proceedings for the purposes of the annulment of the designation decision. The pleas raised by the applicant in those court proceedings call into question, inter alia, the legal test applied by the Commission and the assessment of the evidence submitted in the context of the administrative procedure leading to that decision, with the result that the internal considerations relating to the adoption of the designation decision in those court proceedings have a relevant connection with the latter. In other words, the requested documents contain the Commission’s position on contentious issues raised during the court proceedings relied upon.
49      The requested documents may, moreover, contain the Commission’s preliminary internal positions, which do not necessarily correspond to the arguments presented by the Commission before the General Court in order to challenge the applicant’s pleas in the context of those court proceedings, as stated in the contested decision.
50      Second, those documents contain preliminary assessments and interpretations made in the context of discussions that took place between Commission officials and the members of the Cabinets of Executive Vice-President Margrethe Vestager and Commissioner Thierry Breton, relating to the decision on the designation of ByteDance as a gatekeeper. Furthermore, as is apparent from paragraph 11 above, in the light of the wording of the content of the third category of documents identified by the Commission, it cannot be ruled out that the initial positions of the two members of the Commission referred to differed from those subsequently adopted. It must be stated that those documents have a relevant connection with the court proceedings in the context of which the applicant sought the annulment of the designation decision, and contain information that was internal to the Commission and closely related to the legal aspects of the court proceedings.
51      Therefore, as the Commission submits, disclosure of the requested documents could have undermined the principle of equality of arms, within the meaning of the case-law cited in paragraph 36 above. The disclosure of them would expose the arguments put forward by the Commission to public debate, which would be liable to affect the integrity of the court proceedings and observance of the principle of equality of arms.
52      Thus, as follows from the case-law cited in paragraph 40 above, it must be noted that, at the time of the adoption of the contested decision refusing access to those documents, the latter had a relevant connection with a dispute pending before the EU Courts and, although those documents were not drawn up in the context of pending court proceedings, disclosure of them was liable to undermine the principle of equality of arms, in particular the Commission’s ability to defend itself in those proceedings, and was thereby liable to compromise the court proceedings that were ongoing at the time when the contested decision was adopted.
53      The applicant’s other arguments cannot call into question that conclusion.
54      In the first place, as regards the argument that the Commission has failed to demonstrate that the requested documents contain legal advice or that they refer to legal positions in connection with court proceedings, it should be noted that those documents contain preliminary assessments and interpretations made in the context of discussions relating to the decision to designate ByteDance as a gatekeeper and that the court proceedings concern an action for annulment of that decision. Thus, those documents have a relevant connection with those proceedings, within the meaning of the case-law cited in paragraph 40 above.
55      In the second place, as regards the argument that it is not apparent from the contested decision that the requested documents form the basis for the preparation of the defence, it must be noted that the Commission expressly states, in the contested decision, that the identified documents ‘are the basis for the preparation of [its] defence … in response to the pleas of [ByteDance]’. Furthermore, it should be noted that, as is apparent from the contested decision, if the Commission were forced to disclose its internal considerations relating to the adoption of the designation decision, that would compromise the principle of equality of arms between the parties and the sound administration of justice, within the meaning of the case-law cited in paragraph 35 above.
56      In the third place, as regards the applicant’s argument that the Commission has not demonstrated that disclosure of the requested documents would reveal a preliminary position on legal or strategic points, it must be noted that, as stated in the contested decision, access to the requested documents would reveal the Commission’s preliminary and internal positions which would risk weakening the arguments put forward by it in the court proceedings concerning the designation of ByteDance and would risk undermining the Commission’s position in the dispute.
57      It follows from the foregoing that the second plea must be rejected.
58      Therefore, and in so far as the Commission was right to refuse access to the requested documents on the basis of the exception laid down in the second indent of Article 4(2) of Regulation No 1049/2001, it is not necessary to examine the merits of the first plea, alleging infringement of the third indent of Article 4(2) of Regulation No 1049/2001, concerning the exception relating to the protection of the purpose of investigations.
The third plea in law, alleging infringement of the last limb of Article 4(2) of Regulation No 1049/2001 resulting from the failure to find that there was an overriding public interest in disclosure
59      The applicant submits that, in the light of the circumstances of the present case, there is an overriding public interest, in essence, in understanding the Commission’s policy considerations and interpretation, in ensuring the principle of transparency, in the Commission’s accountability, and in sound administration as regards the designation procedure and the handling of arguments rebutting the application of the ‘gatekeeper presumption’ on the basis of Article 3(5) of the DMA.
60      The applicant complains that the Commission rejected ByteDance’s requests to provide it with information during the pre-notification period. According to the applicant, the provision of that information would have enabled ByteDance to submit further evidence or other arguments in order to demonstrate that it was possible to rebut that presumption.
61      In addition, according to the applicant, it is apparent from the contested decision that the requested documents contain grounds for the designation of ByteDance that differ from those included in the decision published by the Commission.
62      In that regard, the applicant observes that the existence of an overriding public interest in understanding the Commission’s reasoning on designation matters is particularly apparent from the fact that the DMA is a new regulation affecting broad sectors of the economy, from the existence of a strong public interest in digital regulation and from a broad public debate on how the Commission reasons as regards the direct designation of gatekeepers and the rebuttal of the presumption under Article 3(5) of the DMA.
63      In the reply, the applicant relies on several press articles from 2021 and 2022, highlighting the criticisms made, in the United States, in respect of the DMA. He also relies on evidence mainly from 2022, in order to illustrate the debate concerning the classification of TikTok’s services as core platform services under the DMA. In addition, the applicant submits that it is clear that the Commission’s decision to reject ByteDance’s requests to organise discussions on the evidence rebutting the presumption in Article 3(5) of the DMA is a political decision taken at a higher level within the Commission’s cabinets. To that end, he produces, as evidence, two publications, one by Commissioner Breton, and the other by the Directorate-General for Communications Networks, Content and Technology, dated 4 and 10 July 2023, respectively.
64      The Commission disputes the applicant’s arguments.
65      Where an institution, in the present case the Commission, refuses access to documents on the basis of one of the exceptions laid down in Article 4(2) of Regulation No 1049/2001, it must weigh the particular interest to be protected through non-disclosure of the document concerned against any overriding public interest in disclosure (see, to that effect, judgment of 3 July 2014, Council v in ’t Veld, C‑350/12 P, EU:C:2014:2039, paragraph 53 and the case-law cited), as follows from the last limb of Article 4(2) of Regulation No 1049/2001.
66      According to the case-law, the onus is on the party arguing for the existence of an overriding public interest to rely on specific circumstances to justify the disclosure of the documents concerned (see, to that effect, judgments of 29 June 2010, Commission v Technische Glaswerke Ilmenau, C‑139/07 P, EU:C:2010:376, paragraph 62; of 28 June 2012, Commission v Agrofert Holding, C‑477/10 P, EU:C:2012:394, paragraph 68; and of 11 May 2017, Sweden v Commission, C‑562/14 P, EU:C:2017:356, paragraph 56).
67      Furthermore, a statement setting out purely general considerations is not sufficient to establish that an overriding public interest prevails over the reasons justifying the refusal to disclose the documents in question (see, to that effect, judgment of 2 October 2024, Soares v Commission, T‑606/23, not published, EU:T:2024:667, paragraph 60 and the case-law cited).
68      In that context, a person who intends to object to a ground for refusal of disclosure must, first, put forward the existence of a public interest capable of prevailing over that ground and, second, demonstrate precisely that, in the particular case, disclosure of the documents concerned would specifically contribute to ensuring the protection of that public interest to such an extent that the principle of transparency prevails over the protection of the interests on which the refusal to disclose was based (see judgment of 9 October 2018, Pint v Commission, T‑634/17, not published, EU:T:2018:662, paragraph 48 and the case-law cited).
69      Furthermore, the overriding public interest that may justify disclosure of a document need not necessarily be distinct from the principles which underlie Regulation No 1049/2001 (see, to that effect, judgment of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraphs 74 and 75).
70      In the present case, it should be noted that, in the contested decision, the Commission considered that there was no overriding public interest in disclosure of the requested documents under the last limb of Article 4(2) of Regulation No 1049/2001. In particular, according to the Commission, the applicant’s arguments did not establish that there was an overriding public interest in the disclosure of those documents, since the applicant’s arguments were general considerations regarding a general need for transparency and accountability, which could not constitute an appropriate basis for establishing that the principle of transparency was, in the present case, particularly pressing and therefore capable of prevailing over the reasons justifying the refusal to disclose the documents in question.
71      In that regard, it must be noted that the applicant submits, in essence, that there is a strong public interest in undertakings having knowledge of the policy considerations and interpretation which govern the Commission’s assessment in the context of the procedure referred to in Article 3(5) of the DMA and govern the decision on whether or not to open an investigation pursuant to Article 17 of the DMA. The applicant also adds that there is a strong public interest in the sound administration of the Commission’s executive functions and in the transparency of policy choices and interpretations in the field of digital regulation.
72      In the first place, it must be held that the interest of other undertakings in having knowledge of the considerations on which the designation decision in the present case was based, that interest being relied on by the applicant, constitutes an interest of a private nature.
73      In the second place, as regards the interest in sound administration and transparency, it is true that this constitutes a public interest, to the extent that it is objective and general in nature (see, to that effect, judgment of 12 May 2015, Technion and Technion Research & Development Foundation v Commission, T‑480/11, EU:T:2015:272, paragraph 78 and the case-law cited). Nevertheless, in the circumstances of the present case, first, that interest is not so pressing that it should prevail over the interest in the protection of court proceedings, and, second, the applicant has put forward only arguments of a purely general nature, which, as follows from the case-law cited in paragraph 67 above, are not sufficient to establish that an overriding public interest prevails over the reasons justifying the refusal to disclose the requested documents.
74      Furthermore, it must be noted that the EU Courts have already had occasion to state that the interest of the public in obtaining access to a document pursuant to the principle of transparency, which seeks to ensure greater participation by citizens in the decision-making process and to guarantee that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system, does not, where the document relates to an administrative procedure, have the same weight as where the document relates to a procedure in which the institution in question acts in its capacity as legislator (see, to that effect, judgments of 29 June 2010, Commission v Technische Glaswerke Ilmenau, C‑139/07 P, EU:C:2010:376, paragraph 60, and of 20 March 2014, Reagens v Commission, T‑181/10, not published, EU:T:2014:139, paragraph 140). In the present case, the requested documents clearly form part of an administrative procedure that gave rise to court proceedings.
75      In addition, the relevance of the applicant’s line of argument relating to the public interest in having knowledge of the policy considerations and interpretation which govern the Commission’s assessment in the context of the procedure referred to in Article 3(5) of the DMA and govern the decision on whether or not to open an investigation under Article 17(3) of the DMA presupposes that the requested documents reflect the Commission’s policy and general methodology and do not specifically concern a particular undertaking. However, that is not the case here, since the requested documents concerned, according to the very wording of the request for access, the possible designation of ByteDance as a gatekeeper.
76      In the third place, as regards the documents produced in Annexes C.1 to C.10 to the reply, the admissibility of which is disputed by the Commission, it must be held that, in any event, they are irrelevant. Those documents concern press articles dated 2021 and 2022, relating to criticisms made in the United States in respect of the DMA, and relating to the classification of TikTok’s services as core platform services under the DMA, as well as two publications, one by Commissioner Breton, and the other by the Directorate-General for Communications Networks, Content and Technology, dated 4 and 10 July 2023, respectively. However, none of those documents highlights the existence of an overriding public interest in disclosure.
77      The same is true of documents D.1 and D.2, provided by the applicant as an annex to his letter of 19 March 2025 concerning the opening of the oral part of the procedure. Irrespective of whether those documents are admissible, it must be held that they do not demonstrate that there is an overriding public interest, within the meaning of the last limb of Article 4(2) of Regulation No 1049/2001. First, it should be noted, as the Commission has submitted, that those documents, which are subsequent to the adoption of the contested decision, could not have influenced that institution’s assessment as regards the existence of a ‘high level of public interest’ at the time of the adoption of the contested decision. Second, it is in no way apparent from the content of those documents that public disclosure of the documents in question would be of benefit to the alleged public interest. That evidence is therefore irrelevant.
78      In view of those considerations, it must be concluded that the interest invoked by the applicant does not constitute an overriding public interest within the meaning of the last limb of Article 4(2) of Regulation No 1049/2001. Accordingly, the third plea must be rejected.
The fourth plea in law, alleging infringement of Article 4(6) of Regulation No 1049/2001 resulting from the refusal to grant partial access
79      The applicant claims that the Commission did not examine each relevant document in order to determine whether partial access was possible, and that the Commission has failed to demonstrate how the documents in question contain, in their entirety, the Commission’s legal positions, thus justifying them not being disclosed.
80      In the reply, the applicant adds that the arguments put forward by the Commission, to the effect that all the requested documents are covered by the two exceptions relied on, constitute new grounds and are therefore inadmissible.
81      The Commission disputes the applicant’s arguments.
82      According to Article 4(6) of Regulation No 1049/2001, if only parts of the requested document are covered by any of the exceptions referred to in that article, the remaining parts of the document are to be released.
83      According to the case-law of the Court, examination of partial access to a document of the EU institutions must be carried out in the light of the principle of proportionality (judgment of 6 December 2001, Council v Hautala, C‑353/99 P, EU:C:2001:661, paragraphs 27 and 28).
84      It thus follows from the wording itself of Article 4(6) of Regulation No 1049/2001 that an institution is required to consider whether it is appropriate to grant partial access to documents requested and to confine any refusal to information covered by the relevant exceptions. The institution must grant partial access if the aim pursued by that institution in refusing access to a document may be achieved where all that is required of the institution is to blank out the passages which might harm the public interest to be protected (judgments of 25 April 2007, WWF European Policy Programme v Council, T‑264/04, EU:T:2007:114, paragraph 50, and of 12 September 2013, Besselink v Council, T‑331/11, not published, EU:T:2013:419, paragraph 84; see, to that effect, judgment of 6 December 2001, Council v Hautala, C‑353/99 P, EU:C:2001:661, paragraph 29).
85      In the present case, as a preliminary point, it must be noted that the Commission’s arguments, to the effect that all the requested documents are covered by the two exceptions relied on, are apparent from the contested decision and, therefore, are not new. In that regard, the considerations concerning the application of the exception referred to in the second indent of Article 4(2) of Regulation No 1049/2001, relating to the protection of court proceedings, apply to all of the documents to which access is requested. First, all those documents form part of the administrative file created in the context of the pre-notification phase in preparation for ByteDance’s notification and in preparation for the designation decision. They therefore contain the Commission’s internal and preliminary positions which, if disclosed, could compromise the principle of equality of arms between the parties in court proceedings (see paragraph 52 above).
86      Second, it is apparent from the contested decision that the Commission examined the possibility of partial disclosure of the requested documents. Following that examination, it concluded that such partial disclosure, for the purpose of Article 4(6) of Regulation No 1049/2001, was not possible on the ground that the exceptions referred to in the second and third indents of Article 4(2) of Regulation No 1049/2001 applied to all of the documents, as identified and classified by the Commission in the three categories referred to in paragraph 11 above; those documents all relate to the potential designation of ByteDance as a gatekeeper under Article 3 of the DMA.
87      The Commission was therefore right to refuse partial access. In that regard, it should be noted that all the documents covered by the request for access and identified by the Commission were part of the administrative file that was created in the context of the pre-notification phase in preparation for ByteDance’s notification and in preparation for the designation decision and, for that reason, those documents could contain the Commission’s internal and preliminary positions, disclosure of which would harm the public interest protected by the second indent of Article 4(2) of Regulation No 1049/2001.
88      In that context, it must be held that the Commission was not required to disclose even part of the documents covered by the applicant’s request, with the result that the fourth plea must be rejected. The action must, therefore, be dismissed in its entirety.
Costs
89      Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Mr Edward William Batchelor to pay the costs.
Brkan
Gâlea
Tóth
Delivered in open court in Luxembourg on 25 February 2026.
V. Di Bucci
M. van der Woude
Registrar
President
*      Language of the case: English.