Confidentiality and Disclosure in European Commission Antitrust Proceedings—the Case for Clarity

"Any company which is involved in a European antitrust investigation—whether as a target of the investigation, a complainant or a third-party provider of information—will have a critical interest in the extent to which information supplied to and held by the European Commission is liable to be disclosed in the course of the proceedings. In particular, any party from whom information has been obtained will wish to know with as much certainty as possible whether any sensitive material will be protected from disclosure, and, from a policy perspective, it is desirable to facilitate cooperation with the Commission’s investi- gations by ensuring that this certainty exists."

"This article sets out the approach taken to disclosure in the relevant legislative texts, in the major decisions of the European Courts and in the practice of the Commission, and explains the problems to which these differing approaches are liable to give rise. It goes on to examine the reasons for this inconsistency, and suggest possibilities for removing, or at least mitigating, the inconsistency."