Confidentiality claims

Dealing with confidentiality claims

It is preferable to settle all claims for confidentiality before the notification of the SO to the parties, in order to ensure a complete access to file.

More about Confidentiality claims

According to para. 42 of the Notice on access to file: “Where the Directorate General for Competition does not agree with the confidentiality claim from the outset or where it takes the view that the provisional acceptance of the confidentiality claim should be reversed, and thus intends to disclose information, it will grant the person or undertaking in question an opportunity to express its views. In such cases, the Directorate General for Competition will inform the person or undertaking in writing of its intention to disclose information, give its reasons and set a time-limit within which such person or undertaking may inform it in writing of its views. If, following submission of those views, a disagreement on the confidentiality claim persists, the matter will be dealt with by the Hearing Officer according to the applicable Commission terms of reference of the Hearing Officers”.

More about the Subject

In practice, the case team usually tries first to solve issues of unjustified confidentiality claims informally with the information provider. DG Competition informs the information provider in writing that – it will provisionally accept those claims which seem justified. In any event, the information provider should be reminded of the Commission's right to reconsider its initial evaluation at a later stage of the handling of the case 1 , or – it does not agree with the confidentiality claim in whole or in part, provides reasons for the intention of disclosing this information and sets a time limit within which the information provider may inform the Commission in writing of its views.

Other Considerations

If, following the submission of the information provider's views, a disagreement on the confidentiality claim persists, DG Competition will inform the company concerned in writing that their information will be disclosed, unless a reasoned request for confidentiality is lodged with the Hearing Officer (HO) within a given deadline. This letter should be sent with acknowledgement of receipt with a copy to the HO.

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If the information provider maintains its position, the HO will address the issue and, if necessary, apply the Akzo Procedure, 2 in accordance with Article 8 of the HO Terms of Reference 3 . – In practice, the HO may send a “pre Article 8” letter. – If the company concerned still objects to the disclosure of this information, but the Commission finds that the information should not be protected and may therefore be disclosed, that finding must be stated in a reasoned decision of the HO (Article 8 Decision). – This decision is adopted by delegation procedure by the HO and notified to the concerned company. – The company concerned is thereby given the opportunity to bring an action before the General Court with a view to having the Commission's assessment reviewed. – The company concerned must inform the HO within a given time limit from the day of notification of the Article 8 Decision whether they intend to lodge an appeal with the General Court and to apply for interim measures. – If the company concerned has lodged an appeal and applied for interim measures before that deadline, the Commission cannot disclose the relevant information until the Court has taken a decision on the request for interim relief.

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According to the result of the decision, include the decision and classify the document pursuant to the decision (confidential or non-confidential) in the file.

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If information providers misuse the procedure to delay the Commission's investigation, they should be reminded that the Commission may consider this an event of non-cooperation and take it into account as an aggravating factor when setting a possible fine against the information providers.

Resources

See Also

References

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

Notes

[Note 1] One should keep in mind that the Notice on access to file explicitly foresees the possibility to provisionally accept substantiated confidentiality claims accompanied by non-confidential versions, while reserving the possibility to reverse a provisional acceptance at a later stage (see para 42 of the Notice on access to file).
[Note 2] As first set out by the Court of Justice in Case 53/85 Akzo v Commission [1986] ECR p. 1965.

Further Reading

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