How to protect (render confidential) information submitted to the Competition Council
Any person providing information to the Competition Council (whether on their own initiative or at the request of the Competition Council) is entitled to petition the Competition Council to assign the specific information, or a portion thereof, the status of restricted access information (see Section 26.1 of the Competition Law).
The status of restricted access information denotes that the information is only accessible to the Competition Council and, should the decision be appealed, also to the court. Thus, the information is not available to the public or to other undertakings involved in the particular case.
The Competition Council assigns the status of restricted access information to information for a period that does not exceed one year (see Section 5, Paragraph four of the Freedom of Information Law). Before the expiry of that period, the Competition Council may decide on setting a new period or rescinding the status.
For the purposes of protecting information that contains trade secrets, undertakings may petition for a longer period of protection, and the Competition Council ensures the protection of such information until the date specified by the undertaking. However, undertakings are required to notify the Competition Council of any changes to the status of the information containing trade secrets (instances where such information becomes public).
Information that has not been assigned the status of restricted access is generally accessible: it may be reviewed by the other undertakings involved in the case and, if necessary, the information may be quoted in a decision by the Competition Council – which is publicly accessible.
Requesting information protection
- The information that is to be assigned the status of restricted access must be identified exactly (by underlining or highlighting the relevant information).
- Justification must be provided why the specific information requires the status of restricted access.
Information for which protection may be requested
Section 5 of the Freedom of Information Law lists the information that may be assigned the status of restricted access.
In the majority of cases, market participants request that restricted access is assigned to information containing their trade (commercial) secrets. Thus, if a market participant believes that certain information contains trade secrets (e.g. purchase prices of goods, discounts applied, costs, terms of contracts), a substantiation must be provided that it meets all the criteria listed in Section 19, Paragraph one of the Commercial Law:
- the information is contained in the company of the market participant or is directly related thereto
- the information is not generally accessible to third parties
- the information has actual or potential financial or non-financial value
- the coming of the information at the disposal of another person may cause losses to the market participant
- in respect of the information, the market participant has taken reasonable measures to preserve its secrecy.
If a market participant fails to provide an objective rationale indicating that the information it is providing conforms to all the features of a trade secret, the Competition Council will not assign the status of restricted access to such information provided.
At the request of a market participant, the Competition Council ensures the protection of information revealing the identity of the party reporting a violation. The market participant must provide substantiation for the request and any other facts it considers relevant.
Communication with an attorney
A market participant has the right to request that the confidentiality of information related to the legal assistance provided by an attorney-at-law is ensured, as provided for by Section 6 of the Advocacy Law. In making the request, the market participant must provide a substantiation and evidence attesting that the specific information is to be deemed related to the provision of legal assistance.
In order to be able to substantiate its findings in its decisions and explanations to courts while at the same time not disclosing restricted access information, the Competition Council may require that the person, the information submitted by whom needs to be assigned the status of restricted access information, submits a general summary of that information reflecting the information subject to protection in a generalised manner, or is deleted from the relevant document by filing a derivative of the original (see Section 26.1, Paragraph four of the Competition Law).