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Brussels, 13th December 2005

Competition: Commission improves rules for access to the file in merger and antitrust procedures

The European Commission has revised its rules for access to the Commission’s files by parties involved in its merger and antitrust cases in order to increase the transparency of competition procedures and underline the Commission’s commitment to due process and parties’ rights of defence. The revision takes the form of an update to the existing Notice on the rules of procedure for access to the Commission’s competition file from 1997 (see IP/97/50), taking into account the revisions to the Merger Regulation (see IP/02/1856), the modernisation of antitrust enforcement (see IP/02/1739) and experience gained in applying the former rules. The revised Notice clarifies both the extent and the exercise of the right of access to the file. The revised Notice also increases procedural efficiency by confirming that access to the file can be granted either electronically or on paper.

Competition Commissioner Neelie Kroes commented: “These new rules will increase the transparency and efficiency of our merger and antitrust procedures. They reflect the Commission’s long-standing commitment to guarantee full respect for the rights of defence of parties in competition procedures”.

Access to the file is an important procedural step in all contentious antitrust and merger cases. It allows the companies or organisations that receive Statements of Objections (i.e. the Commission’s explanation as to why it has reached the preliminary view that the addressees may have broken the competition rules) to see all of the evidence, whether it is incriminating or exonerating, in the Commission’s file. A party can then understand the facts which led the Commission to send a Statement of Objections, and draw the Commission’s attention to elements of the file which the party believes have not been given sufficient weight. This is a fundamental procedural safeguard which ensures the rights of defence of companies.

The revised Notice clarifies that access to file is granted only to addressees of a Statement of Objections. However, 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 as their scope, nature and timing are different from the right of access to file given to addressees of a Statement of Objections.

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 two types of information are not accessible: “internal documents” and “business secrets and other confidential information”. The Notice clarifies the definitions of “internal documents”, “business secrets” and “other confidential information”, as well as the main criteria for accepting requests for confidential treatment. In particular:

- “Internal documents” are 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” are information covered by a legitimate claim for confidentiality.

The Notice clarifies that this notion of "business secrets” covers information about a company’s business where disclosure could result in serious harm to that company. Examples now set out in the Notice include information relating to a company's know-how, methods of assessing costs and production secrets and processes.

“Other confidential information” is now defined in the Notice as information whose disclosure would significantly harm a person or undertaking. For example, this may include information that would enable the parties to identify complainants or other third parties who have requested anonymity. Access to these documents may be partially or totally restricted.

The Notice also describes the procedures for the treatment of confidential information and for implementing access to the file. It describes in more detail than the previous Notice the procedure for resolution of disagreements on confidentiality claims and on the balancing of confidentiality claims against rights of defence.

The Notice confirms that the Commission may grant access either in electronic form (CD-ROMS, DVD, etc) or in paper form.

The right of “access to the file” in competition cases is distinct from the general right of “access to documents” under Council Regulation 1049/2001 (see IP/01/639), which was established for a different purpose and is subject to different rules.

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