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Access to File: Ensuring an Effective Right of Defence?

This article explores the fundamentals of access to file in the European Commission, including the legal basis, timing, scope, and the balancing exercise between access and confidentiality. It also discusses the role of the Hearing Officer and provides guidance for efficiency in accessing the file. Beyond legal requirements, best practices for transparency and improving decision-making are emphasized.

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Access to File: Ensuring an Effective Right of Defence?

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

  2. Access to file Fundamentals 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

  3. Access to file Fundamentals 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

  4. Access to file vs Confidentiality • 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

  5. Access to file The balancing exercise 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

  6. Access to file – The Hearing Officer’s role 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

  7. Access to file – Guidance for efficiency • 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.

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

  9. Conclusions • 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

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