Confidential information

Confidential information

Access to the file and protection of confidential information

When the Commission has to grant access to the file, it will also need to grant access to the recordings of any interviews carried out during the investigation and included in the file.

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In this process the Commission must ensure the protection of business secrets or other confidential information. This may include protection of the identity of the interviewee (particularly if the employer is not aware that one of its employees gave an interview).

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For details on preparing and granting access to the file, see relevant Module on Access to file.

Resources

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References

  • Information about Confidential information in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Further Reading

  • Information about Confidential information in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Confidential information

Confidential information comprises business secrets and other confidential information.

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Business secrets are confidential information about an undertaking's business activity the disclosure of which could cause serious harm to that undertaking. 1 Examples of information that may qualify as business secrets include: technical and/or financial information relating to an undertaking's know-how, methods of assessing costs, production secrets and processes, supply sources, quantities produced and sold, market shares, customer and distributor lists, marketing plans, cost and price structure and sales strategy. 2

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Other confidential information is information other than business secrets, insofar as its disclosure would significantly harm a person or undertaking. 3 Depending on the specific circumstances of each case, this may apply to information provided by third parties about undertakings which are able to place very considerable economic or commercial pressure on their competitors or on their trading partners, customers or suppliers. The General Court and the Court of Justice have acknowledged that it is legitimate to refuse to reveal to such undertakings certain letters received from their customers, since their disclosure might easily expose the authors to the risk of retaliatory measures 4 . Therefore the notion of other confidential information may include information that would enable the parties to identify complainants or other third parties where those have a justified wish to remain anonymous. 5

Other Considerations

By way of example, the Commission does not normally accept the following type of information as business secrets and other confidential information: – data from or about another company (such as price announcements, sales data etc. other than received pursuant to a contract with that company), unless confidentiality has been claimed (e.g. to prevent revelation of the knowledge of this information); – information made known outside the company concerned (such as price targets, increases, dates of implementation and customer names, if made known to third parties); – facts relating to an application for immunity or a reduction of fines, where these facts aim at providing evidence of an alleged infringement, unless the disclosure of such facts could harm the Commission's leniency policy; – names and positions of employees or other persons involved in an infringement.

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Business secrets and other confidential documents lose their classification as confidential documents if they: – are already known outside or – have lost their commercial importance, for instance due to the passage of time (as a general rule, parties' turnover, sales, market-share data and similar information which is more than 5 years old is no longer confidential). 6

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Personal data has to be processed in accordance with Regulation (EC) No 45/2001. 7

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Correspondence on confidentiality relating to the granting of confidentiality (including the cover emails etc.) is so closely interrelated to the issue of confidentiality that it need normally not be disclosed to the parties. It is advisable to clearly indicate in the file index that the document concerned constitutes “correspondence on confidentiality claims”, so that the parties can understand why the document is not accessible.

Resources

See Also

References

  • Information about Confidential information in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Notes


[Note 1]
Case T-353/94, Postbank NV v Commission, of 18.9.1996, para. 87.
[Note 2]
Notice on access to file, para. 18.
[Note 3]
Notice on access to file, para. 20, includes explicitly military secrets in the category of other confidential information.
[Note 4]
The Court of Justice of the European Union have pronounced upon this question both in cases of alleged abuse of a dominant position (Article 102 TFEU) (Case T-65/89, BPB Industries and British Gypsum [1993] ECR II-389; and Case C-310/93P, BPB Industries and British Gypsum [1995] ECR I-865), and in merger cases (Case T- 221/95 Endemol v Commission [1999] ECR II-1299, para. 69, and Case T-5/02 TetraLaval v. Commission [2002] ECR II-4381, para. 98 et seq.).
[Note 5]
Notice on access to file, para. 19-20.
[Note 6]
Notice on access to file, para. 23.
[Note 7]
Regulation (EC) 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data, OJ L 8, 12.1.2001, p.1.

Further Reading

  • Information about Confidential information in “An Introduction to EU Competition Law”, Moritz Lorenz (Cambridge University Press)

Non-Confidential version of the Decision Contents: Confidential information

Under Article 339 TFEU, the Commission and its staff are bound by the obligation of professional secrecy. 1 This obligation covers business secrets 2 and other confidential information provided it meets the criteria set out by case law.

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According to the Court 3 , in order to fall under the obligation of professional secrecy the information must: – be known only to a limited number of persons, – if disclosed, be liable to cause serious harm to the person who provided it or to third parties, and – if disclosed, the interests liable to be harmed by disclosure must, objectively, be worthy of protection.

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The parties have therefore the right to claim that their business secrets and other confidential information are redacted in a non-confidential version.

Other Considerations

The concept of business secrets or other confidential information concerns information of which not only disclosure to the public but also mere transmission to a person other than the one who provided the information may seriously harm the latter's interests. 4

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Therefore, the content of the published decisions is limited by the Commission's obligation to protect business secrets of undertakings or other confidential information that may be part of the reasoning in the decision. Typical examples for information that would be deleted from a nonconfidential version concern precise and sufficiently contemporaneous turnover figures, customer information (e.g. their names, quantities purchased or prices paid) and market shares 5 . Instead, the non-confidential version could contain ranges of figures, data and shares, or a neutral description for a name.

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Whether confidentiality claims are acceptable is to be decided on the basis of the applicable legal rules and the relevant case law. 6

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The Commission has delegated the power to refuse claims for business secrets for the purposes of publications to the Hearing Officers, who therefore can take this decision for the Commission with the approval of the Legal Service (see for more details on the process section 4.1.4. above) 7 .

Resources

See Also

References

  • Information about Confidential information in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Notes


[Note 2]
Which are expressly mentioned in Article 30(2) of Regulation 1/2003.
[Note 3]
Case T-198/03 Bank Austria Creditanstalt / Commission [2006] ECR II-1429, para. 71; and also Case T-474/04 Pergan Hilfsstoffe für industrielle Prozesse / Commission [2007] ECR II-4225, paras. 65 et seq.
[Note 4]
See Case T-353/94 Postbank v Commission [1996] ECR II-921, para. 87.
[Note 5]
See Case T-383/03 Hynix Semiconductor v Council [2005] ECR II-627 and Case T-271/03 Deutsche Telekom v Commission [2006] ECR II-1749.
[Note 6]
See Case T-474/04 Pergan Hilfsstoffe für industrielle Prozesse / Commission [2007] ECR II-4225, para. 65, where the Court sets out: “it is necessary, first of all, that such business secrets or confidential information be known only to a limited number of persons. Next, it must be information whose disclosure is liable to cause serious harm to the person who has provided it or to third parties (…). Finally, the interests liable to be harmed by disclosure must be worthy of protection.”
[Note 7]
Delegation of powers C(2011)7442 to the hearing officer relating to the adoption of certain measures in competition proceedings under Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU) and Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings.

Further Reading

  • Information about Confidential information in “An Introduction to EU Competition Law”, Moritz Lorenz (Cambridge University Press)

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