Confidentiality requests

Informing companies how to lodge confidentiality requests

The case-team requires systematically the provider of information for a non-confidential version of the original documents, when requesting or receiving information (Art. 18(2) letters or 18(3) decisions, when receiving complaints, reply to SO, during hearings etc. see relevant module on each topic).

More about Confidentiality requests

After inspections and the unsolicited submission of information, the case-team should clarify which documents can be returned as not objectively linked to the investigation and request immediately the confidentiality status of the remaining documents by sending a letter to the parties asking them a non-confidential version of those documents, enclosed to the sending by copying them on a CD-ROM, if appropriate.

More about the Subject

How to submit a non-confidential version and this way submit claims for non-confidentiality is set out in the annex on business secrets and other confidential information, based on Article 16 of Regulation 773/2004 and the para. 39 to 43 of the Notice on access to file, sent together with the Commission's request of information or request for non-confidential versions. – The case-team may/will ask the provider of information to provide draft non-confidential versions of the documents in which the provider should first only highlight the information considered confidential or a business secret so that it remains legible. – The information that the provider of information considers confidential can then be readily identified by the case-team. The highlighted text together with the table of confidentiality claims, providing the reason for the confidentiality claim and, if necessary, a non-confidential summary of the confidential, will form the basis of any discussions on the treatment of the content. – At the latest once the case-team is preparing access to file, it will assess the claims for confidential treatment and review the documents submitted accordingly. – Once the claims for confidentiality are accepted, the case-team asks to produce a final, blacked out version of the document (including annexes). – In general, confidentiality cannot be claimed for the entire or whole sections of the document as it is normally possible to protect confidential information with limited redactions. – The non-confidential document should keep the same format as the original version. So, if the provider of information claims confidentiality for only some parts of a document, the provider is requested to provide an accessible non-confidential version of the ENTIRE document i.e. if a five page document has been submitted, the non-confidential version of that document must also contain 5 pages. Headings of the documents and/or the headings of the columns should not be redacted, nor columns or spaces in tables and/or pictures left empty.

Other Considerations

If information providers do not respond or fail to comply with the provisions setting out how to submit confidentiality claims (in particular with the obligation to properly justify the claim and submit a meaningful summary for the redacted information), the Commission may assume that the documents or statements concerned do not contain confidential information and that the undertaking has no objections to the disclosure of the documents or statements concerned in their entirety. The standard confidentiality annex explicitly reminds companies of these consequences (see also Art. 16(4) Reg. 773/2004).

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Article 16 of Reg. 773/2004 does not contain any legal obligation to send a reminder to an information provider if the request is not answered within the time limit. In particular in cases where an information provider is represented by an external lawyer, it can be presumed that they are aware of the legal provisions and their consequences.

Resources

See Also

References

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

Further Reading

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