Access to the Case File and Protection of Confidential Information

Providing access to evidence in a competition agency’s case file protects the parties’ rights of defence and promotes the transparency of the system. The extent and the timing of this access vary across jurisdictions. 

Agencies depend on access to confidential information provided by parties and third parties to carry out enforcement activities. Confidential information is not disclosed, unless this is necessary to protect legitimate interests, for instance, to safeguard the rights of defence. Where disclosure is necessary, confidential information is shared under conditions, e.g. by restricting disclosure only to the external legal counsel of the party requesting access.

The OECD held a roundtable in December 2019 to examine different types of rules and modes of access to the case file in competition proceedings. It also explored the 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 roundtable also examined the exceptional situations where confidential information is disclosed.

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• Parties under investigation are typically granted access to relevant agency documents, but the extent and timing of access vary. Rules for complainants may also differ.
• Some jurisdictions grant access to the file also to the public, but impose limits.
•  All jurisdictions protect confidential information, including business secrets.
• Jurisdictions typically allow for disclosure of confidential information to the investigated parties, if this is necessary to protect their rights of defence. Mechanisms to limit the disclosure may be used.
• Waivers are a common instrument for the disclosure of confidential information to foreign competition agencies.
• Disclosure of leniency materials for the purposes of damages claims is rare and often requires a court order. 

Executive summary with key findings | Synthèse des points clés

Detailed summary of the discussion | Résumé détaillé de la discussion

OECD Background note  |  Note de référence de l'OCDE