Consultation on EC Communication on the protection of confidential information for private enforcement

National courts are increasingly dealing with competition law proceedings brought by consumers and competitors, so-called private enforcement proceedings.

Unlike competition authorities, these private claimants do not have investigative powers to obtain evidence to build their case. There are already several EU measures in place to encourage private enforcement, including the Damages Directive and efforts to adopt a consumer redress law.

In spite of these measures, private enforcement remains problematic as evidence is still difficult to obtain. There is a delicate balancing act between the rights and interests of claimants, who seek compensation for damage, and the rights and interests of defendants, who want to protect business secrets. The Commission is acutely aware of this issue as it has been criticised in the past for revealing business secrets of companies under investigation.

The European Commission has issued a draft “Communication on the protection of confidential information for the private enforcement of EU competition law by national courts”.

The draft Communication, issued on 29 July 2019, seeks to assist national courts in dealing with requests to disclose confidential information in such private enforcement proceedings.

The draft Communication is pragmatic and provides practical guidance to national courts in selecting effective protective measures for document confidentiality, for instance taking into account the specific circumstances of the case, and the type and degree of sensitivity of the confidential information.

The draft Communication proposes a number of measures for disclosing relevant information while protecting confidentiality, including organising “confidentiality rings” (whereby specified categories of information, including confidential information, are made available by the disclosing party only to defined categories of individuals), guidelines for redacting sensitive documents (removing confidential information) and appointing experts.

Stakeholders have until 18 October 2019 to submit their observations, after which the Commission intends to finalise and adopt the Communication.