Specific confidentiality safeguards

In exceptional cases where a risk exists that a Member State competition authority could not guarantee that commercially sensitive information is not used by another “arm of the State” for purposes other than the enforcement of Articles 101 and 102 TFEU, the Commission would need to take the necessary safeguarding measures respecting the ruling of the Court in the SEP case 1 . If it wishes to transmit a document to the competent national authorities, notwithstanding the claim that in the particular circumstances of the case that document is of a confidential nature with respect to those authorities, the Commission will have to adopt a reasoned decision amenable to judicial review by means of an action for annulment. It is through an action for the annulment of such a decision that the undertaking might effectively rely on its right to protection of its business secrets.

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In those cases where the Commission has decided which information is to be treated confidentially – as the case could be with respect to requests for public access to documents under Regulation 1049/2001 or with respect to questions decided by the Hearing officer in the application of the Akzo procedure (very exceptionally, in the application of the SEP case law mentioned in previous paragraph) – the transmission should indicate which parts of the exchanged information are thus regarded as confidential.

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Where the parties have provided a non-confidential version of the information, it is recommended to also include this version in the transmission pursuant to Article 12.

Resources

References

Information about Specific confidentiality safeguards in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Specific confidentiality safeguards

Specific confidentiality safeguards