Business at OECD Competition Committee Addresses Access to the Case File and Protection of Confidential Information

Munesh Mahtani
Head of Legal, ViaVan
Vice Chair, Business at OECD Competition Committee

On December 3, 2019, the OECD Competition Committee held a roundtable to discuss access to the case file and protection of confidential information. The roundtable examined different types of rules and modes of access to the file in competition proceedings. It explored different approaches to protecting confidential information, including such issues as the types of information considered confidential, the procedures used to determine whether confidential treatment must be granted, and the methods used to protect confidentiality.

The Business at OECD Competition Committee provided its views during the meeting, noting that the OECD’s current examination of procedural fairness, of which access to file by the parties under investigation forms part, is hugely important. With the continuing advancements in due process, it is vital that agencies adopt robust procedures on access to file and ensure that such access is complete, timely, and meaningful. Parties under investigation must be given the opportunity to understand and respond to the allegations being made and have recourse to an independent review of an agency’s decision on access to file.

On the balancing between access to file and the protection of confidentiality, while confidentiality protections must be strong, that balance must weigh in favour of disclosure unless that would cause significant and demonstrable harm to the information provider or the market. Appropriate tools exist to allow disclosure, while mitigating the risk of harm to the information provider, and there exists a body guidance and best practices on the use of such tools. As Business at OECD has noted previously, “There should be a strong presumption in favour of disclosing the facts, documents, theories and legal authority to firms under investigation as early in the investigative process as is practicable.” (1). This is fundamental to ensuring that rights of defence are respected and standards of procedural fairness are upheld.

Business at OECD has previously commented on the broader subject of procedural fairness, noting that “[p]rocedural fairness is critical to protect the interests of firms subject to competition law enforcement proceedings who face the risk of substantial sanctions, not least being increasingly onerous financial penalties, but which may also include the prohibition of or mandated changes to business practices and transactions. Importantly, such fairness also strengthens and streamlines agency decision-making, reducing the number of appeals, and increases public confidence in agency decisions and so is of general public benefit.” (2)