On 12 December 2018, the European Commission ("Commission") published two new guidance documents facilitating access to the Commission's files by undertakings subject to antitrust proceedings. These documents are part of the Commission's efforts to increase the transparency of competition procedures, guarantee due process and ensure the undertakings' rights of defence. They follow the Best Practices on Data Rooms as well as the Guidance on confidentiality claims published by the Commission in 2015 and the Recommendations for the use of electronic document submissions published in 2016.
The first new guidance document (available here) covers the use of "confidentiality rings" in antitrust access-to-file proceedings and represents a mere codification of DG Competition's practice based on its experience. A confidentiality ring is defined as a negotiated disclosure procedure through which a restricted circle of individuals is given access to confidential information contained in the Commission's file. According to the Commission, confidentiality rings have the dual purpose of safeguarding the rights of defence, while both respecting the legitimate interest in confidentiality of the information providers and reducing the burden of preparing non-confidential versions of documents.
According to the procedure laid out in the guidance, the party seeking access to information filed with the Commission negotiates with the party that provided the documents to reach an agreement on which individuals should be allowed to have access to the files; these individuals constitute the confidentiality ring. In this context, the Commission plays the role of a facilitator and has discretion to decide whether a confidentiality ring is appropriate in a particular case.
The guidance document is accompanied by a template for a negotiated disclosure agreement which must be signed by all parties in the confidentiality ring. It includes, inter alia, provisions on removing any liability from the Commission in the event that documents are leaked as a result of a breach of the negotiated disclosure agreement by a member of the confidentiality ring. In addition, if counsel for one of the parties breaches the confidentiality ring, the Commission can report such counsel to his or her bar association and recommend that disciplinary action be taken. The destruction of the documents included in the confidentiality ring after a certain time limit is also foreseen.
The role of the Hearing Officer in accessing files is also developed in the guidance in the event that an undertaking subject to an antitrust investigation considers that further access to files is necessary for the proper exercise of its right to be heard or where the Commission intends to disclose information that is considered confidential by the information provider.
The second new document (available here) provides guidance on confidentiality claims during antitrust procedures and can be regarded as an updated version of the Commission's 2012 guidance document on business secrets and other confidential information. It provides up-to-date case law references and improved practical information for undertakings claiming confidentiality in antitrust proceedings.
More precisely, this document provides definitions of business secrets and other confidential information, as well as what is not considered to be a business secret or other confidential information. It is made clear that the assessment of whether any given information contains business secrets or other confidential information has to be done on a case-by-case basis. This being said, according to the guidance, all the following conditions must be met for information to be regarded as confidential:
- such information must be known only to a limited number of persons;
- its disclosure must be liable to cause serious harm to the person who has provided it or to third parties; and
- the interests liable to be harmed by the disclosure must be objectively worthy of protection.
In addition, the guidance outlines the manner in which non-confidential versions of documents must be submitted. A complete non-confidential version must be provided of each document for which confidentiality is claimed. Redactions must be limited to specific pieces of information; confidentiality cannot be claimed for an entire document or a whole section of it. Reasons must be provided in writing to support each claim for confidentiality, coupled with an explanation as to why the information in question constitutes a business secret or other confidential information, in particular, how the disclosure of this information would cause serious harm to the undertaking. A concise but meaningful non-confidential summary of each piece of information claimed to be confidential must also be submitted.
Importantly, it is expressly provided that in the event of non-compliance with the guidance, the Commission may assume that the submissions/documents do not contain any business secrets or other confidential information and, therefore, that there are no objections to the disclosure of that information.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.