Tag Archives: Scope of the Access to File

Professional secrecy

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Professional secrecy

Professional secrecy

The provisions on professional secrecy apply also to the competition authorities of the Member States, their officials, civil servants and other persons working under the supervision of these authorities as well as officials and civil servants of other authorities of the Member States (including their representatives and experts attending the Advisory Committee meetings). 1

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According to the General Court 2 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. The General Court has also confirmed that the concept of professional secrecy is broader than that of business secret and therefore documents protected by the principle of professional secrecy can be disclosed when granting access to the file for the purpose of the rights of defence, provided they do not contain business secrets 3 .

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References

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

Notes


[Note 1] Reference could also be made to Regulation 45/2001, which obliges the Commission to ensure that the processing of personal data relating to natural persons is done in a fair and lawful way.
[Note 2] Case T-198/03 Bank Austria Creditanstalt AG v Commission [2006] ECR II-1429, para. 71; also Case T-474/04, Pergan v Commission [2007] ECR II-4225, para 65 et seq.
[Note 3] Case T-198/03 Bank Austria Creditanstalt AG v Commission, para. 29.

Further Reading

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

Internal documents

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Internal documents

Internal documents

Internal documents can be neither incriminating nor exculpatory. They do not constitute part of the evidence on which the Commission can rely in its assessment of a case. Given their lack of evidential value, this restriction on access to internal documents does not prejudice the proper exercise of the parties' right of defence.

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Internal documents are documents, such as drafts, opinions, memos or notes from the Commission or from the NCAs, including correspondence between them.

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Minutes of meetings, if they contain also internal assessment, are to be treated as internal documents. According to the case law, the right to access to file does not require the Commission departments to draft any minutes of meetings with any person or undertaking 1 .

Other Considerations

According to the Notice on Antitrust Best Practices 2 , DG Competition may hold informal meetings (or conduct phone calls) with the parties subject to the proceedings, complainants, or third parties during the investigative phase. When a meeting takes place at the request of the parties, complainants or third parties, they should submit in advance a proposed agenda of topics to be discussed at the meeting, as well as a memorandum or a presentation covering these issues in more detail. The parties, complainants or third parties are invited after meetings or phone calls on substantive issues to substantiate their statements or presentations in writing. A non-confidential version of any written documentation prepared by the undertakings which attended a meeting held by DG Competition, together with a brief note prepared by the services of DG Competition, will be made accessible. Subject to requests for anonymity this note will mention the undertaking(s) attending the meeting, (or participating in the phone call relating to substantive issues) and the time and topic(s) covered by the meeting (or such a phone call). DG Competition may, after a meeting or other informal contact with the parties, complainants or third parties, request them to provide information in writing pursuant to Article 18 of Regulation 1/2003 or invite them to make a statement pursuant to Article 19 thereof.

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When external experts are commissioned in connection with proceedings, correspondence between the Commission and the external expert constitutes, in principle, internal documents 3 . These include correspondence containing evaluation of the contractor's work, including the draft of the report, or relating to financial aspects of the study. Such correspondence will thus not be accessible 4 . However, the results of a study commissioned in connection with proceedings with a view to be used as evidence as well as documents that are necessary to understand the methodology applied in the study or to test its technical correctness are accessible.

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Information obtained at the DG Competition library from external paid databases should not be made available if copyrighted.

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A particular case of internal documents is the Commission's correspondence with other public authorities and the internal documents received from such authorities, whether from EU Member States or third countries. Examples of such non-accessible documents include: a) correspondence between the Commission and NCAs, or between the latter; b) correspondence between the Commission and other public authorities of Member States; c) correspondence between the Commission, the EFTA Surveillance Authority and public authorities of EFTA States; d) correspondence between the Commission and public authorities of third countries, including their competition authorities, in particular where the European Union and a third country have concluded an agreement governing the confidentiality of the information exchanged.

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In certain exceptional circumstances, access may be granted to documents originating from Member States, the EFTA Surveillance Authority or EFTA States, after deletion of any business secrets or other confidential information. The Commission will consult as appropriate the entity submitting the document prior to granting access to identify business secrets or other confidential information.

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This is the case where the documents originating from Member States contain allegations brought against the parties, which the Commission must examine, or form part of the evidence in the investigative process, in a way similar to documents obtained from private parties. These considerations apply, in particular, as regards: – documents and information exchanged pursuant to Article 12 of Regulation (EC) No 1/2003, and information provided to the Commission pursuant to Article 18(6) of Regulation (EC) No 1/2003; – complaints lodged by a Member State under Article 7(2) of Regulation (EC) No 1/2003.

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Access will also be granted to documents originating from Member States or the EFTA Surveillance Authority in so far as they are relevant to the parties' defence with regard to the Commission's jurisdiction. 5

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References

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

Notes


[Note 1] Joined Cases T-191/98 and T-212/98 to T-214/98 Atlantic Container Line and others v Commission (TACA) [2003] ECR II-3275, para. 349-359.
[Note 2] Notice on Antitrust Best Practices, para 42 seq.
[Note 3] Cf. 2005 Annual Report, para 21, in the section on the new Notice on access to file.
[Note 4] See Notice on access to file para.14 and Case T-210/01 General Electric v Commission [2005] ECR II-5575: In relation to Professor Choi's report, which was the basis of the Commission's theory on mixed bundling, the Court noted that the Commission's refusal, founded on a request for confidentiality made by Rolls-Royce, to grant access to the data on which the Choi model was based had no effect on the outcome of the administrative procedure. The Court considered that the Commission is entitled to seek different opinions, including the opinions of external experts, in order to check the accuracy of its analysis. To the extent that the Commission does not rely on the opinion of such an expert in its SO and its final decision as evidence substantiating its case against an undertaking, the opinion remains no more than a view expressed by a single person and assumes no particular significance in the context of the administrative procedure. Such a view, even though expressed by an expert, cannot therefore be regarded as either favourable or adverse evidence (para 671). If the documents in question had been regarded as forming part of the Commission's actual case-file, they would have been classified as internal documents, given their status and content, and the applicant would therefore not have had access to them (para. 672).
[Note 5] Notice on access to file, para. 15-16.

Further Reading

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

Definition of accessible documents

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Definition of accessible documents

Definition of accessible / non-accessible documents

According to the principle of equality of arms, all documents, whether inculpatory or exculpatory evidence and other information, which have been obtained by, produced to and/or assembled by DG Competition in the Commission's file need to be rendered accessible. 1

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There are only two exceptions: – internal documents from the Commission or from the NCAs, including correspondence between them; and – confidential documents, including business secrets and other confidential information 2 .

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References

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

Notes


[Note 1] Notice on access to file, para. 7-10.
[Note 2] Notice on access to file, para. 10

Further Reading

  • Information about Definition of accessible documents in “An Introduction to EU Competition Law”, Moritz Lorenz (Cambridge University Press)

Disclosure of confidential information

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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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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)

Confidentiality Claim Scope

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Confidentiality Claim Scope

Scope for confidentiality claim

Information will be classified as confidential where the information provider has substantiated its confidentiality claim and provided a non-confidential version that has been provisionally accepted by the Commission.

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Dealing with requests for confidentiality generates substantial workload and case teams should deal with them as early as practicable. These claims must be settled before the SO is notified and access to file granted.

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References

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

Further Reading

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

Confidentiality Claim Scope Legal Framework

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Confidentiality Claim Scope Legal Framework

Legal Framework

The protection of confidential information is in principal assured by the classification itself pursuant to Article 27(2) Reg. 1/2003 and Article 15(2) and 16(1) Reg. 773/2004 as well as by the obligation of professional secrecy, which obliges the Commission not to disclose information in its possession covered by the obligation of professional secrecy pursuant to Article 28 of Reg. 1/2003 and Art. 339 TFEU. 1

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References

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

Notes


[Note 1] Neither Article 339 TFEU nor Regulation 1/2003 explicitly indicates what information apart from business secrets is covered by the obligation of professional secrecy, but see case-law below.

Further Reading

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

Confidentiality claims

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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.

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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”.

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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.

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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)

Confidentiality requests

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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).

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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.

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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

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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)