Access to the European Commission file in merger and anti-trust cases

SUMMARY OF:

Commission Notice on the rules for access to the Commission file in merger and anti-trust cases

WHAT IS THE AIM OF THE COMMISSION NOTICE?

It contains rules for access to the European Commission file by parties involved in merger and antitrust cases. The notice aims to improve the transparency of competition procedures and underlines the Commission’s commitment to due process and parties’ rights of defence.

KEY POINTS

Access to the file is intended to enable the effective exercise of the rights of defence against any objections by the Commission in cases brought under Article 101 and Article 102 of the Treaty on the Functioning of the European Union and and in cases under the Merger Regulation, which covers the procedure for controlling certain merger operations between companies.

Article 101 (ex Article 81 of the EC Treaty) prohibits agreements between undertakings and associations of undertakings which restrict competition, such as price-fixing or market sharing. Article 102 (ex Article 82 of the EC Treaty) prohibits firms abusing a dominant market position, for example by charging unfair prices, limiting production, or refusing to innovate.

Who is entitled to access to the file?

File access is granted, on request, to the persons, undertakings or associations of undertakings to which the Commission has addressed objections. The notice clarifies who has the right to request access to the file and under what circumstances. Persons, undertakings or associations of undertakings that receive a Statement of Objections* have the right to see all the evidence, whether it is incriminating or exonerating, in the Commission’s investigation file.

The notice recognises a separate right, granting limited access to specific documents on the file to complainants in antitrust cases and other involved parties in merger cases. These rights are dealt with separately since their scope, nature and timing are different from the right of access to file given to addressees of a Statement of Objections.

The right of access to the file in competition cases is distinct from the general right of access to documents under Regulation (EC) No 1049/2001. The right of access to documents was established for a different purpose and is subject to different rules.

Accessible and inaccessible documents

The Commission file includes all documents that are part of the specific procedure on which the Statement of Objections has been based. The notice identifies the types of documents that are accessible and those that are not. Only 2 types of information are not accessible:

internal documents, identified as including both internal documents of the Commission and documents exchanged between the Commission and other public authorities;
business secrets and other confidential information where disclosure could result in serious harm to a person or undertaking. Where possible, the Commission will grant access to non-confidential versions of the original information.

Responsibilities of parties submitting information

To ensure the protection of business secrets and other confidential information, any person submitting information to the Commission must:

clearly identify any material which they consider confidential;
provide a separate non-confidential version;
in antitrust proceedings, provide a concise description of each piece of deleted information.

Confidentiality claims

The notice describes the criteria the Commission uses for the assessment of confidentiality claims. It also foresees that the need to safeguard the rights of defence may outweigh the concern to protect confidential information.

It confirms that the Commission may grant access either in electronic form or in paper form.

BACKGROUND

For more information, see:

Antitrust legislation (European Commission)
Mergers legislation (European Commission).

KEY TERMS

Statement of objections: the Commission’s explanation of its preliminary view that addressees may have broken competition rules.

MAIN DOCUMENT

Commission Notice on the rules for access to the Commission file in cases pursuant to Articles 81 and 82 of the EC Treaty, Articles 53, 54 and 57 of the EEA Agreement and Council Regulation (EC) No 139/2004 (OJ C 325, 22.12.2005, pp. 7-15)