1 Access to file An effective right of defence? Karen Williams Hearing Officer EUROPEAN COMMISSION

2 Legal Basis:  Fundamental Principle of EC Law (ECJ)  Regulation 1/2003, Regulation 139/2004, Implementing Regulations  Detailed rules in notice on access to file Purpose: Access to investigation file allows the parties to  express their views effectively on the preliminary conclusions reached by the Commission Access to file Fundamentals

3 Timing: Issuance of SO triggers access to file Scope:  Principle of equality of arms The Commission must reveal all information in its investigation file.  Two valid grounds for denying access:  Internal Documents  Confidential Information Access to file Fundamentals

4  The duty to protect confidential information  Notion of confidentiality: Danger of serious harm (CFI in Postbank)  Prior to disclosure of potential business secrets: The so called “Akzo-procedure”  Access to file and business secrets: The balancing exercise Access to file vs Confidentiality

5 Balance should take account of  The potential exonerating or incriminating probative value of the information  The harm possibly caused by its disclosure Practical arrangements to achieve balance  Evidence is only revealed partially  Without revealing the provider’s idendity  By disclosing figures in ranges  By producing meaningful summaries  A data room procedure is applied Access to file The balancing exercise

6 With regard to access to file, the Hearing Officer  Acts as a mediator in order to resolve disputes between the companies and the relevant Commission services  Ultimately decides on requests for confidentiality and access to file  Spreads the culture of fair process within DG Competition and provides guidance Access to file – The Hearing Officer’s role

7  Information providers should submit substantiated requests for confidentiality  The addressees of a statement of objections should concentrate on information essential for their defence, explaining the possible probative value of confidential information they request.  The Commission should deal with access to file and confidentiality requests in good time, applying consistently high standards. Access to file – Guidance for efficiency

8  Transparency is not a right but a good practice  Best Practices: Review of key documents prior toissuance of SO in Merger Proceedings  Mutual exchange of replies and comments with other parties’ consent improves quality of decision making Access to file – Beyond legal requirements

9  Likelihood of access to file needs to be factored from the outset  Basic rules establish high legal standard  Rules still evolving  Ultimately case by case approach Conclusions