On 16 March 2012, the European Commission published new informal guidance on how confidentiality claims should be made by undertakings in respect of documents and submissions provided to DG Competition in the context of investigations into alleged breaches of Article 101 and Article 102 TFEU.
During antitrust investigations, the Commission has the power to request information. If the Commission formally initiate proceedings, it will then grant access to its file to all the addressees of its statement of objections, which will include access to the non-confidential version of submissions and documents gathered in the course of the investigation. Under Regulation 773/2004 (rules governing conduct of investigations under Article 101/102 TFEU), the Commission cannot provide access to information, including documents, in so far as it contains business secrets or other confidential information.
The purpose of the new document published by the Commission is to provide more detailed guidance for undertakings on how to claim confidentiality for certain information submitted to the Commission. In particular, it spells out how undertakings should format their responses to requests for information and also what information can and cannot be redacted. This document will supplement the existing Standard note on confidentiality claims that the Commission annexes to all requests for information.
The guidance sets out practical "do's and don'ts" as regards the presentation of confidentiality claims and provides specific examples to explain its points in more depth:
- In order to claim confidentiality for business secrets or other confidential information, a non-confidential version of relevant documents should be provided in which the information considered to be confidential is blacked out.
- It must be clear from the non-confidential version where information has been deleted. If necessary, redactions should be indicated by adding phrases such as "business secret", "confidential" or "confidential information".
- In general, confidentiality cannot be claimed for the entire document or whole sections thereof - limited redactions are normally adequate to ensure protection.
- The non-confidential document should retain the same format as the original version. Therefore, if confidentiality is claimed for only some parts of a document, an accessible non-confidential version of the entire document should be provided.
- For administrative efficiency, the Commission may ask for a draft non-confidential version of the submissions/documents to be provided in which the allegedly confidential information is highlighted in a way that it remains legible. A final non-confidential version in which information is blacked out will then only be submitted after the Commission has provisionally accepted the confidentiality claims.
- It is necessary to provide a comprehensive justification for the confidentiality claim, as well as a meaningful non-confidential description of the highlighted or already blacked-out/replaced information. The guidance contains an example of a table that should be used, identifying the relevant part of the document, the reasons for claiming confidentiality and the suggested summary version.
- The Commission will not normally consider confidentiality stamps in letterheads from law firms, or automatic disclaimers in e-mails, as a properly justified request for confidential treatment. Such documents will be made accessible, unless confidentiality has been claimed in accordance with the applicable rules.
The guidance also notes various types of information in respect of which the Commission will not accept confidentiality claims: (i) oral corporate statements made in the framework of the Leniency Notice; (ii) public information; (iii) information pertaining to the parties' turnover, sales, market share data and similar information which has lost its commercial sensitivity, for example, due to the passage of time; (iv) possible corroborating evidence and information, the disclosure of which would not cause serious harm, (v) employees' names involved in the alleged infringement; and (vi) possible proof of an infringement under investigation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.