Following a public consultation launched in July 2019,[1] the Commission adopted a guidance document[2] on the protection of confidential information in proceedings for the private enforcement of EU competition law based on the Antitrust Damages Directive (“ADD”).[3] The Confidentiality Guidance is intended for use by national courts to ensure consistency across Member States regarding access to and the protection of confidential information disclosed in private enforcement proceedings. The Communication is not binding and does not modify the rules applicable in different Member States, but rather outlines a number of measures and tools national courts may employ to help protect confidential information.
The ADD obliges Member States to ensure that national courts have the power to order the disclosure of evidence that may contain confidential information. This requirement applies if the damages claim is plausible, the evidence requested is relevant, and the disclosure request is proportionate. Additionally, national courts should have at their disposal effective measures to protect such confidential information. Allowing claimants access to evidence is a vital aspect of competition law litigation; this is however often characterized by information asymmetry. National courts have to find the right balance between allowing claimants access to evidence while protecting defendants’ rights to the confidentiality of their information. Sufficient protection for confidential information is crucial to ensure that future leniency or immunity applicants continue to come forward. The ADD therefore provides national courts with a range of measures to help protect defendants’ confidential information, including: redacting documents, conducting hearings in camera, restricting the range of persons that can see evidence, and using non-confidential aggregated summaries.
Given the different approaches Member States employ with respect to the protection of confidential information, the Communication seeks to help national courts strike the right balance between claimants’ rights to access relevant information and the rights of others to protect confidential information. The Communication proposes a number of measures to allow national courts to protect confidential information whilst ensuring the parties’ effective access to justice and the exercise of the right to full compensation.[4]
The Communication reiterates the measures to protect confidential information set out in the ADD, and recognizes that the measures adopted will be case-specific. The Communication addresses the following measures:
Redactions. Redactions protect confidentiality by removing, anonymizing, or aggregating confidential information in documents presented as evidence.[5] The Communication highlights the need to allow redactions that are strictly necessary to protect the interests of those from whom the information originates. For example, redacting customers’ names while leaving in the quantities of product supplied to them may suffice to protect confidentiality. National courts can be involved to varying degrees in the redaction process—they may oversee the process themselves or delegate responsibility to the parties.
Confidentiality Rings and Use of Experts. Confidentiality rings allow for confidential information to be made available only to a defined category of individuals.[6] This allows confidential, quantitative data that is difficult to summarize in a meaningful way to retain its evidentiary value, but also reduces the workload when a large number of confidential documents are at issue. The Communication notes that it is important to identify which information is accessible only in the ring, to determine membership of the ring—this may include external advisors, in-house legal counsel, or other company representatives, for example—and to collect written undertakings from the members to ensure information is treated as confidential. Similarly, national courts may also appoint experts in a given field to access certain confidential information and to prepare non-confidential summaries.
Other Tools. The Communication sets out two further tools which can be used during and following proceedings.[7] These include: (i) holding certain portions of public hearings where confidential information may be discussed in camera where only external advisors or legal counsel may be present (including, for example, members of confidentiality rings); and (ii) anonymizing and redacting the copy of the judgment provided to the parties and thereafter published—this also applies to future requests for access to court records under national procedure rules.
Overall, the Communication seeks to provide practical guidance to national courts in selecting effective protective measures when considering the specific circumstances of each case, and the type and degree of sensitivity of the relevant information that needs to be protected.
[1] The public consultation ran from July 29, 2019 until October 18, 2019. The Commission invited comments on a draft of the communication by various stakeholders, including from judges and other court support staff in national courts, lawyers, economic experts, and academics, see https://ec.europa.eu/ competition/consultations/2019_private_enforcement/index_en.html.
[2] Communication from the Commission on the protection of confidential information by national courts in proceedings for the private enforcement of EU competition law 2020/C 242/01, OJ C 242, 22.7.2020, p. 1–17 (“Communication”).
[3] The Antitrust Damages Directive helps citizens and companies claim damages if they are victims of infringements of EU antitrust rules. See Directive 2014/104/ EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union, OJ L 349, 5.12.2014, p. 1–19.
[4] Communication, para. 5.
[5] Communication, paras. 36–49. The Communication acknowledges that redactions may not be the most efficient tool in cases where large numbers of third-party documents are required.
[6] Communication, paras. 50–87.
[7] Communication, paras. 88 et seq.