Antitrust: Commission adopts guidance for national courts when handling disclosure of confidential information

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The European Commission has adopted a Communication on the protection of confidential information by national courts in proceedings for the private enforcement of EU competition law.

This follows a targeted public consultation that the Commission launched on 29 July 2019 inviting comments from stakeholders on the draft communication. During the public consultation, the Commission received contributions from various stakeholders that confirmed the need for further guidance concerning the disclosure of evidence.

The Antitrust Damages Directive helps citizens and companies claim damages if they are victims of infringements of EU antitrust rules.

In this regard, national courts are likely to receive requests for disclosure of evidence containing confidential information. The Antitrust Damages Directive obliges Member States to ensure that national courts have the power to order the disclosure of this evidence, provided that the damages claim is plausible, the evidence requested is relevant and the disclosure request is proportionate. If these conditions are fulfilled, and measures for the protection of confidential information are in place, national courts can order the disclosure of evidence. At the same time, according to the Antitrust Damages Directive, Member States need to ensure that national courts have at their disposal effective measures to protect such confidential information.

National laws may differ largely as regards access to and protection of confidential information. It is very important that national courts strike the right balance between the claimants’ right to access relevant information and the right of a party to protect confidential information.

To support national courts in this task, the Commission has adopted a Communication seeking to provide practical guidance to national courts in selecting effective protective measures, considering among others the specific circumstances of the case, the type of information requested, the extent of the disclosure, the parties and relationships concerned as well as any administrative burdens and cost implications.

The Communication presents a number of measures (e.g. redactions, confidentiality rings, use of experts, closed hearings) national courts may, depending on their procedural framework, order to protect confidential information in the context of disclosure requests throughout and after the closing of the proceedings, and it describes how and when such measures could be effective.

The Communication is not binding for national courts and does not modify or bring about changes to the procedural rules applicable to civil proceedings in the different Member States.

The Communication is available in all official languages here.

Background

The Commission consulted stakeholders on the draft Communication between July and October 2019. The Commission carefully considered all input before adopting the Communication.

Infringements of EU competition law such as cartels or abuses of dominant market positions cause very serious harm, not only to the economy as a whole but also to particular businesses and consumers. They may suffer harm, for example, because of higher prices or lost profits due to foreclosure from a market.

These victims are entitled to compensation for this harm. They can obtain such compensation by bringing an action for damages before a national court. The Antitrust Damages Directive, which all Member States have implemented, makes it easier for victims of anti-competitive practices to obtain damages. More information on antitrust damages actions is available here.