Access to the file
Access to the file enables parties to consult the evidence underpinning a statement of objections and so prepare a more effective defence. This notice is aimed at improving the rules governing access to the Commission file in merger and antitrust proceedings. It clarifies who is entitled to access to the file, the documents to which access may be granted and the procedures for dealing with confidential information and granting access.
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 (Text with EEA relevance) [Official Journal C 325, 22.12.2005].
Access to the Commission file serves to protect the rights of the defence. Firms are thereby able to consult all the evidence in the Commission file and point out elements of which the Commission may not have taken sufficient account. This notice replaces the 1997 Commission notice on access to the file and improves the rules in the matter, for instance by clarifying who is entitled to access.
The right of access to the Commission's file is distinct from the general right to access to documents *.
Scope of access to the file
Access is given, on request, only to persons to whom the Commission addresses statements of objections. The "Commission file" consists of all documents obtained, produced and/or assembled by the Directorate General for Competition during the investigation. Firms are given access to all documents making up the Commission file, with the exception of internal documents, business secrets or other confidential information.
Access is not granted to the Commission's internal documents, which are not part of the evidence on which the Commission relies when assessing a case. Such internal documents include minutes of meetings and correspondence between the Commission and other authorities, in particular the Member States' competition authorities, the EFTA Surveillance Authority and the authorities of non-member countries. In certain exceptional circumstances, the Commission may give access to these documents, for instance where they contain evidence against the parties or are relevant to the parties' defence.
Access to confidential information may be partially or totally restricted. Confidential information consists of business secrets * and other confidential information *. The Commission classifies information as confidential if it accepts a firm's request for confidential treatment. The Commission may disclose a piece of confidential information if it constitutes an inculpatory or exculpatory document. It is for the Commission to assess whether a document should be disclosed or not. Where the Commission intends to disclose information, the person or firm concerned has the possibility of providing a non-confidential version of the document containing that information, with the same evidential value as the original documents.
Parties have no right of access to the file prior to notification of the Commission's statement of objections. In antitrust proceedings, parties are given access to the file on just one occasion, unless the Commission relies on new evidence at later stages in the procedure. In merger proceedings, parties enjoy access upon request at every stage of the procedure up to the consultation of the Advisory Committee.
Particular questions regarding complainants and other involved parties
Complainants or other parties may be given access to the file in certain circumstances. In merger and antitrust proceedings, complainants cannot claim the right of access to the file enjoyed by the parties. However, a complainant who knows that the Commission intends to reject their complaint may request access on a single occasion to the documents on which the Commission has based its provisional assessment. Complainants do not have access to business secrets or other confidential information.
In merger proceedings, interested parties, i.e. parties to the merger such as the firm targeted by the operation, may have access to the Commission file if they request it.
Procedure for implementing access to the file
Any person submitting information to the Commission has an obligation:
- to clearly identify any material which they consider confidential;
- to provide a separate non-confidential version;
- in antitrust proceedings, to provide a concise description of each piece of deleted information.
The non-confidential version must enable any party with access to the file to determine whether the information deleted is likely to be relevant for its defence and therefore whether to request the Commission to grant access to that information.
If undertakings fail to meet these conditions within the deadline, the Commission may assume that the documents concerned do not contain confidential information and disclose them in their entirety. The Commission may accept requests for confidentiality and revise its position at a later stage in proceedings. Where the Directorate General for Competition takes the view that a request for confidentiality is unfounded, the person or undertaking in question is given an opportunity to express their views. If the disagreement persists, the matter is brought before the Hearing Officer.
In the interests of efficiency, the Commission may give access by providing documents in electronic form, on paper or by inviting the parties to examine the accessible file on the Commission's premises. The Commission is not obliged to provide a translation of documents in the file. After obtaining a file, a party may request access to certain inaccessible information. If the Commission witholds access and if the party disagrees with that view, the matter will be resolved by the Hearing Officer.
|Key terms used in the act|