On 19 March 2012 the European Commission published the ""DG Competition informal guidance paper on confidentiality claims". The document mainly deals with the practicalities of claiming the confidentiality of parts of documents sent to the Commission in response to requests for information issued by the Commission, but also touches on some substantive issues.
The confidentiality of submissions sent to the Commission in the course of an investigation can be claimed on the grounds of "business secrets" or "otherwise confidential information". In cartel cases the Commission typically deals with multiple undertakings and large files. It consequently has a particular interest in streamlining its administrative processes as much as possible. The present publication exemplifies this effort. The document contains two main sections: one dealing with practical administrative do's and don'ts for parties submitting confidentiality claims to the Commission; and the other with what is indicated to be "substantive issues".
With respect to substantive issues the document adds little to the existing framework of the "Commission Notice on the rules for access to the Commission file". This latter document sets out the categories of information that may be claimed confidential as well as criteria for the acceptance of requests for confidential treatment. It is however noteworthy that the Commission mentions that it "does not accept confidentiality claims in oral corporate statements made in the framework of the Leniency Notice." This is not an immediate problem in relation to third parties as they do not have access to oral statements. Companies which are the subject of the procedure do however have access to the oral statements. Leniency applicants should therefore ensure that their oral corporate statements do not contain any business secrets since competitors may obtain access to those statements in the context of the procedure that may be initiated or extended on the basis of the leniency application.
In addition it should be noted that the Commission will reject claims pertaining to the names of employees involved in the alleged infringement.
For the remainder the present publication is merely an effort of "administrative streamlining" which is nevertheless desirable as it may increase the expediency within which the Commission deals with these claims and its case load more generally.