DMA Implementing Regulation

1. Upon request, the Commission shall grant access to the file to the undertaking or association of undertakings to which it has addressed preliminary findings pursuant to Article 34(1) of Digital Markets Act (the “addressee”). Access to the file shall not be granted before the notification of the preliminary findings.

2. When providing access to the file, the Commission shall provide the addressee with all documents mentioned in the preliminary findings, subject to redactions that have been made pursuant to Article 7(3) in order to protect business secrets or other confidential information.

3. Without prejudice to paragraph 4, the Commission shall also provide access to all documents on its file, without any redactions, under terms of disclosure to be set out in a Commission decision. The terms of disclosure shall be determined in accordance with the following:

(a) Access to documents shall only be granted to a limited number of specified external legal and economic counsel and external technical experts engaged by the addressee and whose names shall be communicated to the Commission in advance.

(b) The specified external legal and economic counsel and external technical experts shall be undertakings, employees of undertakings or in a situation comparable to that of employees of undertakings. All of them shall be bound by the terms of disclosure.

(c) Persons listed as specified external legal and economic counsel and external technical experts shall not, at the date of the Commission decision setting out the terms of disclosure, be in an employment relationship with the addressee or in a situation comparable to that of an employee of the addressee. Should the specified external legal or economic counsel or external technical experts subsequently enter into such a relationship with the addressee or with other undertakings active on the same markets as the addressee during the investigation or during the three years following the end of the Commission’s investigation, the specified external legal or economic counsel or external technical expert and the addressee shall promptly inform the Commission about the terms of such relationship. The specified external legal or economic counsel or external technical expert in question shall also provide the Commission with an assurance that they no longer have access to the information or documents on the file to which they were given access according to point (a) and which were not made available to the addressee by the Commission. They shall also provide assurances to the Commission that they will continue to comply with the requirements referred to in point (d) of this paragraph.

(d) Specified external legal and economic counsel and external technical experts shall not disclose any of the documents provided or their content to any natural or legal person that is not bound by the terms of disclosure and shall not use any of the documents provided or their content other than for the purposes referred to in Article 8(8) below.

(e) The Commission shall specify, in the terms of disclosure, the technical means of the disclosure and its duration. Disclosure may be made by electronic means or (for some or all documents) physically at the Commission’s premises.

4. In exceptional circumstances the Commission may decide not to grant access to certain documents or to grant access to partly redacted documents under the terms of disclosure referred to in paragraph 3 if it determines that the harm that the party that submitted the documents in question would likely suffer from disclosure under those terms would, on balance, outweigh the importance of the disclosure of the full document for the exercise of the right to be heard. Without prejudice to Article 34(4), fourth and fifth sentences, of Digital Markets Act, the Commission may for the same reason decide not to disclose or partly disclose correspondence between the Commission and public authorities of the Member States or of third countries and other types of sensitive documents.

5. The specified external legal and economic counsel and external technical experts referred to in paragraph 3 may, within one week of receiving access to the file under the terms of disclosure, make a reasoned request to the Commission for access to a non-confidential version of any document on the Commission’s file not already provided to the addressee under paragraph 2, with a view to making such non-confidential version available to the addressee, or for an extension of the terms of disclosure to additional specified external legal and economic counsel or external technical experts. Such additional access or extension may only be granted exceptionally and provided that it is shown to be indispensable for the proper exercise of the addressee’s right to be heard.

6. For the purposes of applying paragraph 4 or 5, the Commission may request the party that submitted the documents in question to provide a non-confidential version thereof pursuant to Article 7(3) and (4).

7. Where the Commission considers a request under paragraph 5 to be well-founded in view of the need to ensure that the addressee is in a position to exercise its right to be heard effectively, the Commission shall request the party that submitted the documents in question either to agree to making a non-confidential version available to the addressee or to agree to the extension of the terms of disclosure to specified individuals or undertakings for the documents in question only. In the event that the party that submitted the documents in question does not agree, the Commission shall adopt a decision setting out the terms of disclosure for the documents in question.

8. Documents obtained through access to the file pursuant to this Article shall only be used for the purposes of the relevant proceedings within which access to those documents was given or of administrative or judicial proceedings concerning the application of Digital Markets Act that are related to those proceedings.

9. At any time during the procedure, the Commission may instead of or in combination with the method of granting access to the file pursuant to paragraph 3 above, give access to some or all documents redacted pursuant to Article 7(3) in order to avoid a disproportionate delay or administrative burden.