Communication from the Commission relating to the revision of the 1997 notice on the internal rules of procedure for processing requests for access to the fileText with EEA relevance
Date: 2004-10-21
Institutions: European Commission
Subjects: access to EU information, access to information, competition law, confidentiality, merger control

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COMMUNICATION FROM THE COMMISSION

relating to the revision of the 1997 notice on the internal rules of procedure for processing
requests for access to the file

(2004/C 259/05)

(Text with EEA relevance)

The Commission invites all interested parties to send their comments on the draft Commission Notice on
the rules for access to the Commission file in cases pursuant to Articles 81 and 82 of the EC Treaty, Arti-
cles 53, 54 and 57 of the EEA Agreement and Council Regulation (EC) No 139/2004.

These comments should be sent to the Commission not later than six weeks after the date of publication
in the Official Journal of the European Union. It is standard Commission practice to publish the submissions
received in response to a public consultation. However it is possible to request that submissions or part
thereof remain confidential. Should this be the case, please indicate clearly on the front page of the submis-
sion that you request it should not be made publicly available. In this case a non-confidential version of
the submission should also be forwarded to the Commission for publication. Comments should be sent
either by e-mail to:

COMP-ACCESS-TO-FILE@cec.eu.int

or in writing to:

European Commission
Directorate-General for Competition
Unit A 3 – Enforcement priorities and decision scrutiny
Access to file notice
B-1049 Brussels

Draft 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

I. INTRODUCTION AND SUBJECT-MATTER OF THE NOTICE

1. Access to the Commission file is one of the procedural guarantees intended to apply the principle of
equality of arms and to protect the rights of the defence. Access to the file is provided for in Article
27(1) and (2) of Council Regulation (EC) No 1/2003 (1), Article 15(1) of Commission Regulation (EC)
No 773/2004 (the Implementing Regulation) (2), Article 18(1) and (3) of the Council Regulation (EC)
No 139/2004 (Merger Regulation) (3) and Article 17(1) of Commission Regulation (EC) No 802/2004
(the Merger Implementing Regulation) (4). In accordance with these provisions, before taking decisions
on the basis of Articles 7, 8, 23 and 24(2) of Regulation No 1/2003 and Articles 6(3), 7(3), 8(2) to (6),
14 and 15 of the Merger Regulation, the Commission shall give the persons, undertakings or associa-
tions of undertakings, where applicable, an opportunity of making known their views on the objec-
tions against them and they shall be entitled to have access to the Commission's file in order to fully

(1) Council Regulation (EC) No 1/2003 of 20516 December 2002 on the implementation of the rules on competition

laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4.1.2003, p. 1-25).

(2) Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commis-

sion pursuant to Articles 81 and 82 of the EC Treaty (OJ L 123, 27.4.2004, p. 18).

(3) Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings

(OJ L 24, 29.1.2004, p. 1).

(4) Commission Regulation (EC) No 802/2004 of 7 April 2004 implementing Council Regulation (EC) No 139/2004 on
the control of concentrations between undertakings (OJ L 133, 30.4.2004, p. 1, corrected in OJ L 172, 6.5.2004, p.
9).

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respect the rights of defence of the parties in the proceedings. The present notice provides the frame-
work for the exercise of the right set out in these provisions. This notice is without prejudice to the
interpretation of such provisions by the Community Courts. The principles set out in this Notice apply
also when the Commission enforces Articles 53, 54 and 57 of the EEA Agreement (5).

2. This specific right outlined above is distinct from the general right to access to documents under Regu-
lation No 1049/2001 (6), which is subject to different criteria and exceptions and pursues a different
purpose.

3. The term ‘access to the file’ is used in this notice exclusively to mean the access granted to the parties
to whom the Commission has addressed a statement of objections. The same term, or the term ‘access
to documents’, is also used in the abovementioned regulations in respect of complainants or other
involved parties. These situations are, however, distinct from that of the undertakings or associations
to whom a statement of objections is addressed and therefore do not fall under the definition of access
to the file for the purposes of this notice. These related situations are dealt with in a separate section
of the notice.

4. This notice clarifies who has access to the file. It also explains to which information access is granted,
when access takes place and what are the procedures for implementing access to the file. In contrast,
this notice does not address the possibility of the provision of documents before the Commission
states its objections to undertakings under the Merger Regulation (7).

5. As from its publication, this notice replaces the 1997 Commission notice on access to the file (8). The
new rules take account of the legislation applicable as of 1 May 2004, namely the abovementioned
Regulation No 1/2003, Merger Regulation, Implementing Regulation and Merger Implementing Regu-
lation, as well as the Commission Decision of 23 May 2001 on the terms of reference of Hearing Offi-
cers in certain competition proceedings (9). It also takes into account the recent case law of the Court
of Justice and the Court of First Instance of the European Communities (10) and the practice developed
by the Commission since the adoption of the 1997 notice.

II. SCOPE OF ACCESS TO THE FILE

A. Who is entitled to access to the file?

6. Access to the file in competition cases is intended to enable the effective exercise of the rights of
defence against the objections brought forward by the Commission. Both in cases under Articles 81
and 82 EC and in cases under the Merger Regulation, access is granted, upon request, to the undertak-
ings or associations of undertakings to which the Commission addresses its objections (11). All such
undertakings or associations will be hereinafter referred to as ‘the parties’.

(5) References in this Notice to Articles 81 and 82 therefore apply also to Articles 53 and 54 of the EEA Agreement.
(6) Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public

access to European Parliament, Council and Commission documents (OJ L 145, 31.5.2001, p. 43).

(7) This question is dealt with in the Directorate General Competition document ‘DG COMP Best Practices on the
conduct of EC merger control proceedings’, available on the web-site of the Directorate General for Competition:
http://europa.eu.int/comm/competition/index_en.html.

(8) Commission notice on the internal rules of procedure for processing requests for access to the file in cases under
Articles 85 and 86 [now 81 and 82] of the EC Treaty, Articles 65 and 66 of the ECSC Treaty and Council Regulation
(EEC) No 4064/89 (OJ C 23, 23.1.1997, p. 3).

(9) OJ L 162, 19.6.2001, p. 21.
(10) In particular Joint Cases T-25/95 et al., Cimenteries CBR SA et al. v Commission, [2000] ECR II-0491.
(11) See Article 15(1) of the Implementing Regulation, Article 18(3) of the Merger Regulation and Article 17(1) of the

Merger Implementing Regulation.

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B. To which documents is access granted?

1. The content of the Commission file

7. The ‘Commission file’ in a competition investigation (hereinafter also referred to as ‘the file’) consists
of all documents (12), which have been obtained, produced and/or assembled by the Commission Direc-
torate General for Competition, during the investigation that has led the Commission to raise its objec-
tions.

8. In the course of investigation under Articles 20, 21 and 22(2) of Regulation No 1/2003 and Articles
12 and 13 of the Merger Regulation, the Commission may collect a number of documents, some of
which may, following a more detailed examination, prove to be unrelated to the subject matter of the
case in question. Such documents may be returned to the undertaking or association from which
those have been obtained. Upon return, these documents will no longer constitute part of the file.

2. Accessible documents

9. The parties must be able to acquaint themselves with the information in the Commission's file, so
that, on the basis of this information, they can effectively express their views on the preliminary
conclusions reached by the Commission in its objections. For this purpose they will be granted access
to all documents making up the Commission file, as defined in point 0, with the exception of internal
documents, business secrets of other undertakings, or other confidential information (13).

10. Results of a study commissioned in connection with proceedings are accessible together with the
terms of reference and the methodology of the study. Precautions may however be necessary in order
to protect intellectual property rights.

3. Non-accessible documents

3.1. In te r n a l doc u me nt s

11. Internal documents can be neither incriminating nor exculpatory (14). They do not constitute part of
the evidence on which the Commission can rely in its assessment of a case. Thus, the parties will not
be granted access to internal documents in the Commission file (15). Given their lack of evidential
value, this restriction on access to internal documents does not prejudice the proper exercise of the
parties' right of defence (16).

(12) In this notice the term ‘document’ is used for all forms of information support, irrespective of the storage medium.

This covers also any electronic data storage device which may exist or become available.

(13) See Article 27(2) of Regulation No 1/2003, Articles 15(2) and 16(1) of the Implementing Regulation, and Article
17(3) of the Merger Implementing Regulation. Those exceptions are also mentioned in Case T-7/89, Hercules Chemi-
cals v Commission, [1991] ECR II-1711, point 54. The Court has ruled that it does not belong to the Commission
alone to decide which documents in the file may be useful for the purposes of the defence (See Case T-30/91 Solvay
v Commission, [1995] ECR II-1775, points 81 to 86, and Case T-36/91 ICI v Commission, [1995] ECR II-1847,
points 91 to 96).

(14) Examples of internal documents are drafts, opinions, memos or notes from the Commission departments or other

public authorities concerned.

(15) See Article 27(2) of Regulation No 1/2003, Article 15(2) of the Implementing Regulation, and Article 17(3) of the

Merger Implementing Regulation.

(16) See point 0.

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12. There is no obligation on the Commission departments to draft any minutes of meetings (17) with the
parties or other persons or undertakings (18). If the Commission chooses to make notes of such meet-
ings, such documents constitute the Commission's own interpretation of what was said at the meet-
ings, for which reason they are classified as internal documents. Where, however, the person or under-
taking in question has agreed the minutes, such minutes will be made accessible after deletion of any
business secrets or other confidential information. Such agreed minutes constitute part of the evidence
on which the Commission can rely in its assessment of a case (19).

13. In the case of a study commissioned in connection with proceedings, correspondence between the
Commission and its contractor containing an evaluation of the contractor's work or relating to finan-
cial aspects of the study is considered as internal documents and will thus not be accessible.

14. A particular case of internal documents is the Commission's correspondence with other public authori-
ties and the internal documents received from such authorities (whether from EC Member States (‘the
Member States’) or non-member countries). Examples of such non-accessible documents include:

— correspondence between the Commission and the competition authorities of the Member States, or
between the latter, including documents drawn up pursuant to Articles 11 and 14 of Regulation
No 1/2003 (20),

— correspondence between the Commission and other public authorities of the Member States (21),

— correspondence between the Commission, the EFTA Surveillance Authority and public authorities

of EFTA States (22),

— correspondence between the Commission and public authorities of non-member countries,
including their competition authorities, in particular where the Community and a third country
have concluded an agreement governing the confidentiality of the information exchanged (23).

15. In certain exceptional circumstances, access is granted to documents originating from Member States,
the EFTA Surveillance Authority or EFTA States, after deletion of any business secrets or other confi-
dential information.

(17) See Judgement of 30.9.2003 in Joined Cases T-191/98 and T-212/98 to T-214/98 Atlantic Container Line and

others v Commission (TACA), not yet reported, points 349 to 359.

(18) In this notice, the term ‘undertaking’ includes both undertakings and associations of undertakings. The term ‘person’
encompasses natural and legal persons. Many entities are legal persons and undertakings at the same time; in this
case, they are covered by both terms. The same applies where a natural person is an undertaking within the
meaning of Articles 81 and 82. In Merger proceedings, account must also be taken of persons referred to in Article
3(1)(b) of the Merger Regulation, even when they are natural persons. For the purposes of points 0 to 0 of this
Notice, such persons are covered by the term ‘undertaking’. Where entities without legal personality which are also
not undertakings become involved in Commission competition proceedings, the Commission applies, where appro-
priate, the principles set out in this Notice mutatis mutandis.

(19) Statements recorded pursuant to Article 19 or Article 20(2)(e) of Regulation 1/2003 or Article 13(2)(e) of the

Merger Regulation will also normally belong to the accessible documents (see point 0).

(20) See Article 27(2) of Regulation No 1/2003.
(21) See Order of the Court of First Instance in Cases T-134/94 et al NMH Stahlwerke and Others v Commission [1997]

ECR II-2293, point 36, and Case T-65/89, BPB Industries and British Gypsum [1993] ECR II-389, point 33.

(22) In this notice the term ‘EFTA States’ includes the EFTA States that are parties to the EEA Agreement.
(23) For example, Article VIII.2 of the Agreement between the European Communities and the Government of the
United States of America regarding the application of their competition laws (OJ L 95, 27.4.1995, p. 45) stipulates
that information provided to it in confidence under the Agreement must be protected ‘to the fullest extent possible’.
That Article creates an international-law obligation binding the Commission.

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This is the case, first, where the documents originating from Member States contain allegations
brought against the parties, which the Commission must examine, or form part of the evidence in the
investigative process, in a way similar to documents obtained from private parties. Second, access will
also be granted to documents originating from Member States which are relevant to the exercise of
competence by the Commission in the merger control area (24). These considerations apply, in particu-
lar, in the following situations:

— documents and information exchanged pursuant to Article 12 of Regulation No 1/2003, and infor-

mation provided to the Commission pursuant to Article 18(6) of Regulation No 1/2003,

— complaints lodged by a Member State under Article 7(2) of Regulation No 1/2003,

— Article 9(1) of the Merger Regulation provides that ‘the Commission may, by means of a decision
notified without delay to the undertakings concerned (…) refer a notified concentration to the
competent authorities of the Member State concerned …’. In the context of access to the file by
the addressees of the Commission's objections, the parties concerned will be granted access to the
request for referral from a national authority,

— Article 22(1) of the Merger Regulation provides that ‘one or more Member States may request the
Commission to examine any concentration (…) that does not have a Community dimension (…)
but affects trade between Member States and threatens to significantly affect competition within
the territory of the Member State or States making the request’. The parties will be granted access
to the letter from the Member State or States requesting examination of the concentration by the
Commission (25),

— transferral of cases under Article 11(2) of Protocol 23 (26) (concerning cooperation between the
surveillance authorities) and Article 10(2) of Protocol 24 (27) (on cooperation in the field of control
of concentrations) to the EEA Agreement and requests for referral under Article 6 of Protocol 24.

3.2. Confi de nti a l i nfor ma t i on

16. The Commission file may also include documents containing two categories of information, namely
information, to which access may be partially or totally
business secrets and other confidential
restricted (28). Access will be granted, where possible, to non-confidential versions of the original infor-
mation. Where confidentiality can only be assured by summarising the relevant information, access
will be granted to a summary. All other documents are accessible in their original form.

3.2.1. Business secrets

17. In so far as disclosure of information about an undertaking's business activity could result in a serious
harm to the same undertaking, such information constitutes business secrets (29). Examples of informa-
tion that may qualify as business secrets include: technical and/or financial information relating to an
undertaking's know-how, methods of assessing costs, production secrets and processes, supply sources,
quantities produced and sold, market shares, customer and distributor lists, marketing plans, cost and
price structure and sales strategy.

(24) Such documents may also contain evidence or allegations which would make them eligible for inclusion in the first

category mentioned immediately above.

(25) Similar considerations apply to pre-notification referrals at the request of the notifying parties under Article 4(4) and

(5) of the Merger Regulation.

(26) As last amended by the Decision of the EEA Joint Committee … of …
(27) As last amended by the Decision of the EEA Joint Committee No 78/2004 of 8 June 2004.
(28) See Article 16(1) of the Implementing Regulation and Article 17(3) of the Merger Implementing Regulation; Case T-
7/89 Hercules Chemicals NV v Commission, [1991] ECR II-1711, point 54; Case T-23/99, LR AF 1998 A/S v
Commission, [2002] ECR II-1705, point 170.

(29) Judgement of 18.9.1996 in Case T-353/94, Postbank NV v Commission, [1996] ECR II-921, point 87.

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3.2.2. Other confidential information

18. The category ‘other confidential information’ includes information other than business secrets, which
may be considered as confidential, insofar as its disclosure would significantly harm a person or under-
taking. Depending on the specific circumstances of each case, this may apply to information provided
about undertakings which are able to place very considerable economic or commercial pressure on
their competitors or on their trading partners, customers or suppliers. The Court of First Instance and
the Court of Justice have acknowledged that it is legitimate to refuse to reveal to such undertakings
certain letters received from their customers, since their disclosure might easily expose the authors to
the risk of retaliatory measures (30). Therefore the notion of other confidential
information may
include information that would enable the parties to identify complainants or other third parties
where those have a justified wish to remain anonymous.

19. The category of other confidential information also includes military secrets.

3.2.3. Criteria for the acceptance of requests for confidential treatment.

20. Information will be classified as confidential where the person or undertaking in question has made a

claim to this effect and such claim has been accepted by the Commission (31).

21. Claims for confidentiality must relate to information which is within the scope of the above descrip-
information. The reasons for which information is
tions of business secrets or other confidential
claimed to be a business secret or other confidential information must be substantiated (32). Confidenti-
ality claims can normally only pertain to information obtained by the Commission from the same
person or undertaking and not to information from any other source.

22. Information relating to an undertaking but which is already known outside the undertaking (in case of
a group, outside the group), or outside the association to which it has been communicated by that
undertaking, will not normally be considered confidential (33). Information that has lost its commercial
importance, for instance due to the passage of time, can no longer be regarded as confidential. As a
general rule, the Commission presumes that information pertaining to the parties' turnover, sales,
market-share data and similar information which is more than five years old is no longer confiden-
tial (34).

23. In proceedings under Articles 81 and 82 of the Treaty, the qualification of a piece of information as
confidential is not a bar to its disclosure if such information is necessary to prove an alleged infringe-
ment (inculpatory document) or if it could exonerate a party. In this case, the need to safeguard the
rights of the defence of the parties through the provision of the widest possible access to the Commis-
sion file may outweigh the concern to protect confidential information of other parties (35). It is for the
Commission to assess whether those circumstances apply to any specific situation. This calls, for each
piece of information, for an assessment of all relevant elements, including:

— the relevance of the information in determining whether or not an infringement has been

committed, and its probative value,

(30) The Community Courts have pronounced upon this question both in cases of alleged abuse of a dominant position
(Article 82 of the EC Treaty) (Case T-65/89, BPB Industries and British Gypsum [1993] ECR II-389; and Case C-
310/93P, BPB Industries and British Gypsum [1995] ECR I-865), and in merger cases (Case T-221/95 Endemol v
Commission [1999] ECR II-1299, point 69, and Case T-5/02 Laval v Commission [2002] ECR II-4381, point 98 et
seq.).

(31) See point 0.
(32) See point 0.
(33) However, business secrets or other confidential information which is given to a trade or professional association by
its members does not lose its confidential nature with regard to third parties and may therefore not be passed on to
complainants. See Joined Cases 209 to 215 and 218/78, Fedetab, [1980] ECR 3125, point 46.

(34) See points 0-0 on asking undertakings to identify confidential information.
(35) See Article 27(2) of Regulation No 1/2003 and Article 15(3) of the Implementing Regulation.

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— whether the information is indispensable,

— the degree of sensitivity involved (to what extent would disclosure of the information harm the

interests of the person or undertaking in question),

— the preliminary view of the seriousness of the alleged infringement.

Similar considerations apply to proceedings under the Merger Regulation when the disclosure of infor-
mation is considered necessary by the Commission for the purpose of the procedure (36).

24. Where the Commission intends to disclose information, the person or undertaking in question shall be
granted the possibility to provide a non-confidential version of the documents where that information
is contained, with the same evidential value as the original documents (37).

C. When is access to the file granted?

25. Prior to the notification of the Commission's statement of objections, the parties have no right of

access to the file.

1. In antitrust proceedings under Articles 81 and 82 of the Treaty

26. Access to the file will be granted upon request and, normally, on a single occasion, following the noti-
fication of the Commission's objections to the parties, in order to ensure the principle of equality of
arms and to protect their rights of defence. As a general rule, therefore, no access will be granted to
other parties' replies to the Commission's objections.

A party will, however, be granted access to documents received after notification of the objections at
later stages of the administrative procedure, prior to the adoption of a formal decision, where such
documents may constitute new evidence pertaining to the allegations against that party in the
Commission's statement of objections.

2. In proceedings under the Merger Regulation

27. In accordance with Article 18(1) and (3) of the Merger Regulation and Article 17(1) of the Merger
Implementing Regulation, the notifying parties will be given access to the Commission's file upon
request at every stage of the procedure following the notification of the Commission's objections up to
the consultation of the Advisory Committee.

III. PARTICULAR QUESTIONS REGARDING COMPLAINANTS AND OTHER INVOLVED PARTIES

28. The present section relates to situations where the Commission may or has to provide access to
certain documents contained in its file to the complainants in antitrust proceedings and other involved
parties in merger proceedings. Irrespective of the wording used in the antitrust and merger imple-
menting regulations (38), these two situations are distinct — in terms of scope, timing, and parties'
rights — from access to the file, as defined in the preceding section of this notice.

(36) Article 18(1) of the Merger Implementing Regulation.
(37) See point 0.
(38) See Article 8(1) of the Implementing Regulation, which speaks about ‘access to documents’ to complainants and
Article 17(2) of Merger Implementing Regulation which speaks about ‘access to file’ to other involved parties ‘in so
far as this is necessary for the purposes of preparing their comments’.

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A. Provision of documents to complainants in antitrust proceedings

29. The Court of First Instance has ruled (39) that complainants do not have the same rights and guarantees
as the parties under investigation. Therefore complainants cannot claim a right of access to the file as
established for parties (see points 0 and 0).

30. However, a complainant who, pursuant to Article 7(1) of the Implementing Regulation, has been
informed of the Commission's intention to reject its complaint (40), may request access to the docu-
ments on which the Commission has based its provisional assessment (41). The complainant will be
provided access to such documents on a single occasion, following the issuance of the letter informing
the complainant of the Commission's intention to reject its complaint.

31. Complainants do not have a right of access to business secrets or other confidential information

which the Commission has obtained in the course of its investigation (42).

B. Provision of documents to other involved parties in merger proceedings

32. In accordance with Article 17(2) of the Merger Implementing Regulation, access to the file in merger
proceedings shall also be given, upon request, to other involved parties who have been informed of
the objections in so far as this is necessary for the purposes of preparing their comments.

33. Such other involved parties are parties to the proposed concentration other than the notifying parties,

such as the seller and the undertaking which is the target of the concentration (43).

IV. PROCEDURE FOR IMPLEMENTING ACCESS TO THE FILE

A. Preparatory procedure

34. Any person who submits information or comments in one of the situations listed hereunder, or subse-
quently submits further information to the Commission in the course of the same procedures, has an
obligation to clearly identify any material which it considers to be confidential, giving reasons, and
provide a separate non-confidential version by the date set by the Commission for making its views
known (44):

(a) in antitrust proceedings:

— an addressee of a Commission's statement of objections making known its views on the objec-

tions (45),

— a complainant making known his or her views on a Commission statement of objections (46),

— any other natural or legal person, who applies to be heard and shows a sufficient interest, or
who is invited by the Commission to express his or her views, making known his or her views
in writing or at an oral hearing (47),

— a complainant making known his or her views on a Commission letter informing him or her

of the Commission's intention to reject the complaint (48).

(39) See Case T-17/93 Matra-Hachette SA v Commission, [1994] ECR II-595, point 34. The Court ruled that the rights
of third parties, as laid down by Article 19 of Council Regulation No 17 of 6.2.1962 (now replaced by Article 27 of
Regulation No 1/2003), were limited to the right to participate in the administrative procedure.

(40) By means of a letter issued in accordance with Article 7(1) of the Implementing Regulation.
(41) See Article 8(1) of the Implementing Regulation.
(42) See Article 8(1) of the Implementing Regulation.
(43) See Article 11(b) of the Merger Implementing Regulation.
(44) See Article 16(2) of the Implementing Regulation and Article 18(2) of the Merger Implementing Regulation.
(45) Pursuant to Article 10(2) of the Implementing Regulation.
(46) Pursuant to Article 6(1) of the Implementing Regulation.
(47) Pursuant to Article 13(1) and (3) of the Implementing Regulation.
(48) Pursuant to Article 7(1) of the Implementing Regulation.

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(b) in merger proceedings

— notifying parties or other involved parties making known their views on Commission objec-
tions adopted with a view to take a decision with regard to a request for a derogation from
suspension of a concentration and which adversely affects one or more of those parties, or on
a provisional decision adopted in the matter (49),

— notifying parties to whom the Commission has addressed a statement of objections, other
involved parties who have been informed of those objections or parties to whom the Commis-
sion has addressed objections with a view to inflict a fine or a periodic penalty payment,
submitting their comments on the objections (50),

— third persons who apply to be heard, or any other natural or legal person invited by the
Commission to express their views, making known their views in writing or at an oral
hearing (51),

— any person who supplies information pursuant to Article 11 of the Merger Regulation.

35. Moreover, the Commission may require undertakings (52), in all cases where they produce or have
produced documents, to identify the documents or parts of documents, which they consider to
contain business secrets or other confidential
information belonging to them, and to identify the
undertakings with regard to which such documents are to be considered confidential (53).

36. For the purposes of quickly dealing with confidentiality claims referred to in point 0, the Commission
may set a time-limit within which the undertakings shall: (i) substantiate their claim for confidentiality
with regard to each individual document or part of document; (ii) provide the Commission with a
non-confidential version of the documents, in which the confidential passages are deleted (54). In anti-
trust proceedings the undertakings in question shall also provide within the said time-limit a concise
description of each piece of deleted information (55).

37. The non-confidential versions and the descriptions of the deleted information must be established in a
manner that enables any party with access to the file to determine whether the information deleted is
likely to be relevant for its defence and therefore whether there are sufficient grounds to request the
Commission to grant access to the information claimed to be confidential.

B. Treatment of confidential information

38. In antitrust proceedings, if undertakings fail to comply with the provisions set out in points 0 to 0
above, the Commission may assume that the documents or statements concerned do not contain
confidential information (56). The Commission will consequently assume that the undertaking has no
objections to the disclosure of the documents or statements concerned in their entirety.

39. In both antitrust proceedings and in proceedings under the Merger Regulation, should the person or
undertaking in question meet the conditions set out in points 0 to 0 above, to the extent they are
applicable, the Commission will either:

— provisionally accept the claims which seem justified. In any event, the Commission reserves the

right to reconsider its initial evaluation at a later stage of the handling of the case, or

— inform the person or undertaking in question that it does not agree with the confidentiality claim

in whole or in part, where it is apparent that the claim is unjustified.

(49) Article 12 of the Merger Implementing Regulation.
(50) Article 13 of the Merger Implementing Regulation.
(51) pursuant to Article 16 of the Merger Implementing Regulation.
(52) In merger proceedings the principles set out in the present and subsequent points also apply to the persons referred

to in Article 3(1)(b) of Merger Regulation, see footnote 18 above.

(53) See Article 16(3) of the Implementing Regulation and Article 18(3) of the Merger Implementing Regulation.
(54) See Article 16(3) of the Implementing Regulation and Article 18(3) of the Merger Implementing Regulation.
(55) See Article 16(3) of the Implementing Regulation.
(56) See Article 16 of the Implementing Regulation.

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40. The Commission may reverse its provisional acceptance of the confidentiality claim in whole or in

part.

41. Where the Directorate General for Competition does not agree with the confidentiality claim from the
outset or where it takes the view that the provisional acceptance of the confidentiality claim should be
reversed, and thus intends to disclose information, it will grant the person or undertaking in question
an opportunity to express its views. In such cases, the Directorate General for Competition will inform
the person or undertaking in writing of its intention to disclose information, give its reasons and set a
time-limit within which such undertaking may inform it in writing of its views. If, following submis-
sion of those views, a disagreement on the confidentiality claim persists, the matter will be dealt with
by the Hearing Officer according to the applicable Commission terms of reference of Hearing Offi-
cers (57).

42. Where there is a risk that an undertaking which is able to place very considerable economic or
commercial pressure on their competitors or on their trading partners, customers or suppliers will
adopt retaliatory measures against those, as a consequence of their collaboration in the investigation
carried out by the Commission (58), the Commission will protect the anonymity of the authors by
providing access to a non-confidential version or summary of the responses in question (59). Requests
for anonymity on account of situations of the like, as well as requests for anonymity according to
point 81 of the Commission Notice on the handling of complaints (60) will be dealt with according to
points 0 to 0.

C. Provision of access to file

43. The Commission may determine that access to the file shall be granted in one of the following ways,

taking due account of the technical capabilities of the parties:

— by means of a CD-ROM(s) or any other electronic data storage device as may become available in

future,

— through copies of the accessible file in paper form sent to them by mail,

— by inviting them to examine the accessible file on the Commission's premises.

The Commission may choose any combination of these methods.

44. In order to facilitate access to the file, the parties will receive an enumerative list of documents setting

out the content of the Commission file, as defined in point 0.

45. Access is granted to evidence as contained in the Commission's file, in its original form: the Commis-

sion is under no obligation to provide a translation of documents in the file (61).

46. If a party considers that, after having obtained access to the file, it requires knowledge of specific non-
accessible information for its defence, it may submit a reasoned request to that end to the Commis-
sion. If the request is not granted by the Directorate General for Competition, the party may submit a
reasoned request to the Hearing Officer,
in accordance with the applicable terms of reference of
Hearing Officers (62).

(57) See Article 9 of the Commission Decision of 23 May 2001 on the terms of reference of hearing officers in certain

competition proceedings (OJ L 162, 19.6.2001, p. 21).

(58) See point 0 .
(59) See Case T-5/02, Tetra Laval v. Commission, [2002] ECR II-4381, points 98, 104 and 105.
(60) Commission Notice on the handling of complaints by the Commission under Articles 81 and 82 of the EC Treaty

(OJ C 101, 27.4.2004, p. 65).

(61) See Case T-25/95 et al. Cimenteries, point 635.
(62) See Article 8 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of hearing

officers in certain competition proceedings (OJ L 162, 19.6.2001, p. 21).

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47. Access to the file in accordance with this notice is granted on the condition that the information
thereby obtained may only be used for the purposes of judicial or administrative proceedings for the
application of the Community competition rules at issue in the related administrative proceedings (63).
Should the information be used for a different purpose, with the involvement of an outside counsel,
the Commission may report the incident to the bar of that counsel, with a view to disciplinary action.

48. With the exception of points 0 and 0, the rules in this section C apply equally to the grant of access
to documents to complainants (in antitrust proceedings) and to other involved parties (in merger
proceedings).

(63) See Articles 15(4) and 8(2) of the Implementing Regulation, respectively, and Article 17(4) of the Merger Imple-

menting Regulation.