Internal documents can be neither incriminating nor exculpatory. They do not constitute part of the evidence on which the Commission can rely in its assessment of a case. Given their lack of evidential value, this restriction on access to internal documents does not prejudice the proper exercise of the parties' right of defence.
More about Internal documents
Internal documents are documents, such as drafts, opinions, memos or notes from the Commission or from the NCAs, including correspondence between them.
More about the Subject
Minutes of meetings, if they contain also internal assessment, are to be treated as internal documents. According to the case law, the right to access to file does not require the Commission departments to draft any minutes of meetings with any person or undertaking 1 .
According to the Notice on Antitrust Best Practices 2 , DG Competition may hold informal meetings (or conduct phone calls) with the parties subject to the proceedings, complainants, or third parties during the investigative phase. When a meeting takes place at the request of the parties, complainants or third parties, they should submit in advance a proposed agenda of topics to be discussed at the meeting, as well as a memorandum or a presentation covering these issues in more detail. The parties, complainants or third parties are invited after meetings or phone calls on substantive issues to substantiate their statements or presentations in writing. A non-confidential version of any written documentation prepared by the undertakings which attended a meeting held by DG Competition, together with a brief note prepared by the services of DG Competition, will be made accessible. Subject to requests for anonymity this note will mention the undertaking(s) attending the meeting, (or participating in the phone call relating to substantive issues) and the time and topic(s) covered by the meeting (or such a phone call). DG Competition may, after a meeting or other informal contact with the parties, complainants or third parties, request them to provide information in writing pursuant to Article 18 of Regulation 1/2003 or invite them to make a statement pursuant to Article 19 thereof.
When external experts are commissioned in connection with proceedings, correspondence between the Commission and the external expert constitutes, in principle, internal documents 3 . These include correspondence containing evaluation of the contractor's work, including the draft of the report, or relating to financial aspects of the study. Such correspondence will thus not be accessible 4 . However, the results of a study commissioned in connection with proceedings with a view to be used as evidence as well as documents that are necessary to understand the methodology applied in the study or to test its technical correctness are accessible.
Information obtained at the DG Competition library from external paid databases should not be made available if copyrighted.
A particular case of internal documents is the Commission's correspondence with other public authorities and the internal documents received from such authorities, whether from EU Member States or third countries. Examples of such non-accessible documents include: a) correspondence between the Commission and NCAs, or between the latter; b) correspondence between the Commission and other public authorities of Member States; c) correspondence between the Commission, the EFTA Surveillance Authority and public authorities of EFTA States; d) correspondence between the Commission and public authorities of third countries, including their competition authorities, in particular where the European Union and a third country have concluded an agreement governing the confidentiality of the information exchanged.
In certain exceptional circumstances, access may be granted to documents originating from Member States, the EFTA Surveillance Authority or EFTA States, after deletion of any business secrets or other confidential information. The Commission will consult as appropriate the entity submitting the document prior to granting access to identify business secrets or other confidential information.
This is the case where the documents originating from Member States contain allegations brought against the parties, which the Commission must examine, or form part of the evidence in the investigative process, in a way similar to documents obtained from private parties. These considerations apply, in particular, as regards: – documents and information exchanged pursuant to Article 12 of Regulation (EC) No 1/2003, and information provided to the Commission pursuant to Article 18(6) of Regulation (EC) No 1/2003; – complaints lodged by a Member State under Article 7(2) of Regulation (EC) No 1/2003.
Access will also be granted to documents originating from Member States or the EFTA Surveillance Authority in so far as they are relevant to the parties' defence with regard to the Commission's jurisdiction. 5
- Information about Internal documents in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)
[Note 1] Joined Cases T-191/98 and T-212/98 to T-214/98 Atlantic Container Line and others v Commission (TACA)  ECR II-3275, para. 349-359.
[Note 2] Notice on Antitrust Best Practices, para 42 seq.
[Note 3] Cf. 2005 Annual Report, para 21, in the section on the new Notice on access to file.
[Note 4] See Notice on access to file para.14 and Case T-210/01 General Electric v Commission  ECR II-5575: In relation to Professor Choi's report, which was the basis of the Commission's theory on mixed bundling, the Court noted that the Commission's refusal, founded on a request for confidentiality made by Rolls-Royce, to grant access to the data on which the Choi model was based had no effect on the outcome of the administrative procedure. The Court considered that the Commission is entitled to seek different opinions, including the opinions of external experts, in order to check the accuracy of its analysis. To the extent that the Commission does not rely on the opinion of such an expert in its SO and its final decision as evidence substantiating its case against an undertaking, the opinion remains no more than a view expressed by a single person and assumes no particular significance in the context of the administrative procedure. Such a view, even though expressed by an expert, cannot therefore be regarded as either favourable or adverse evidence (para 671). If the documents in question had been regarded as forming part of the Commission's actual case-file, they would have been classified as internal documents, given their status and content, and the applicant would therefore not have had access to them (para. 672).
[Note 5] Notice on access to file, para. 15-16.
- Information about Internal documents in “An Introduction to EU Competition Law”, Moritz Lorenz (Cambridge University Press)