Disclosure of confidential information

Disclosure of confidential information

The provisional qualification of a piece of information as confidential is not a bar to its disclosure if such information is necessary to prove an alleged infringement (“inculpatory”) or could be necessary to exonerate a party (“exculpatory document”). 1

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In this case, the need to safeguard the rights of defence of the parties through the provision of the widest possible access to the Commission file may outweigh the obligation to protect confidential information of other parties. 2

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However, information may be disclosed pursuant to Article 12 Reg. 1/2003 for the exchange of information between the Commission and the competition authorities of the Member States and pursuant to Article 15 Reg.1/2003 for the exchange of information between the Commission and national courts (See Module Cooperation with National Competition Authorities).

Other Considerations

Assessment of disclosure: It is for the Commission to assess whether the need to prove an infringement or the right of the defence of the parties may outweigh the protection of confidentiality, in any specific situation. The case team should make this assessment as soon as possible. The following factors, even if potentially conflicting, can play a role: – the relevance of the information in determining whether or not an infringement has been committed, and its probative value; – whether the information is indispensable; – the degree of sensitivity involved (to what extent would disclosure of the information harm the interests of the person or undertaking in question) – the preliminary view of the seriousness of the alleged infringement. The public interest in proving an infringement of competition law, the parties' interest in having exculpatory information in the file at their disposal for the preparation of their defence and the information providers' interest in protecting his confidential information must be considered. The latter interest depends on the damage that the disclosure could cause in the individual case. For example, if information is to be divulged to companies with significant market power, the danger of retaliation against the information providers needs to be taken into account. 3 Information provided by individuals who request confidentiality/anonymity should be treated with utmost care.

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Practical guidance: The case team can choose to provide the information providers with a draft non-confidential version of their documents. However, depending on the characteristics of the individual case, it can prove useful for reconciling conflicting interests to reveal the confidential information (only) partially or in an anonymous manner. 4 The Commission may: – Use information against the addressee of the final decision in a non-confidential or anonymous manner. According to the case-law 5 , the Commission is entitled to use in its final decision confidential information that has only been revealed in a non-confidential or anonymous manner. The General Court has acknowledged that the Commission may make use of an element of evidence even if it does not disclose the identity of the informer to the addressee of the Statement of objections. – Oblige the information providers to (partially) reveal information which is to be used in the final decision or which could be of exonerating value. According to Regulation 1/2003 and 773/2004, the confidential nature of a document is not a bar to its disclosure in these cases. Pursuant to Art. 27, the Commission is not prevented from disclosing and using information necessary to prove an infringement (See further below Section 2.4.2 on the “Akzo procedure”). – Many disputes can be avoided if it is made clear to the parties that the acceptance or refusal of a confidentiality claim is done with a view to establishing a Statement of Objections and in no way precludes a later assessment of the confidentiality of the information in the public version of the decision that will be published on the Internet.

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See Also

References

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

Notes

[Note 1] See Art. 27(2) Reg. 1/2003; Art. 15(3) Reg. 773/2004, Notice on access to file, para. 24.
[Note 2] Case T-30/91 Solvay v Commission [1995] ECR II-1775, para. 81: “In the defended proceedings for which Regulation No 17 provides it cannot be for the Commission alone to decide which documents are of use for the defence. The Commission must give the advisers of the undertaking concerned the opportunity to examine documents which may be relevant so that their probative value for the defence can be assessed”.
[Note 3] Case T-65/89 BPB Industries and British Gypsum [1993] ECR II-389; Case C-310/93 P BPB Industries and British Gypsum [1995] ECR I-865.
[Note 4] This should only be done if it is indeed impossible for the companies to which the information is disclosed to directly or indirectly identify the provider of the information. This will depend on the circumstances of each case.
[Note 5] Case T-44/00, Mannesmann Röhrenwerke [2004] ECR II-2223, para.84.

Further Reading

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