What information may be published by the authority or made available to third parties?
Merger Control (2nd Edition)
In general terms, the PCA has a duty to protect the undertakings’ business secrets. The PCA’s officials are under obligations of professional secrecy and subject to the general provisions of the Criminal Code on breach of secrecy by public servants.
As regards merger control, the notifying party(ies) is/are requested to identify, both in the notification and in responses to additional requests for information, all information (sensitive commercial information; business secrets) that they believe should be kept confidential, and to submit a non-confidential version of these documents. Failure to do so might lead the PCA to declare the notification or the responses as incomplete. If the PCA accepts the confidentiality claims, the information will not be disclosed to third parties.
Also, within 5 business days from effective notification, the PCA shall publish the essential elements of the notification in two national newspapers and on the PCA’s website, so that any interested third parties may present their observations within the prescribed deadline, which must be at least 10 business days. Following a consultation with the notifying party(ies), a non-confidential version of the final decision will be published on the PCA’s website.
The confidentiality obligation is provided in the Greek Competition Act and shall apply among the notifying parties as well. Third parties do not have access to the notification file (including any supporting documentation and any other relevant submission by the parties), rather than only to the decision of the HCC, which is made available as follows: upon the assessment of the notified concentration, HCC will publish a non-confidential version of its decision in the official website of the HCC and the Greek Government Gazette. The publication in the HCC’s website takes place immediately, whereas in the Greek Government Gazette may require from one (1) to three (3) months.
In the context of a notification (as well as any other submission of information made in accordance with the Greek Competition Act) and in case the notifying parties (or the party by which any information has been provided) deem that certain information provided to the HCC constitutes confidential business information and their publication could impair their interests such parties may file a “Confidentiality Request” pursuant to which they file a confidential version of such information, explicitly justifying the reason for which they consider such information as confidential. According to the Regulation of Operation of HCC, any information and documentation submitted to the HCC without being accompanied by a Confidentiality Request or not submitted with in a separate confidential version, are deemed as non-confidential.
Submissions to the CMA are treated in confidence, although the substance of the arguments put by the parties may be communicated by the CMA to interested third parties (except in cases where parties have sought informal advice from the CMA on a certain novel point of substantive assessment or procedure).
The CMA publishes all its decisions in cases where there is a relevant merger situation. Decisions not to open a second-phase investigation are announced briefly on the Stock Exchange Regulatory News Service. The full text of the CMA's decision is published shortly afterwards, subject to the excision of confidential information.
Decisions to open a second-phase investigation are also announced on the Regulatory News Service, but the CMA will also generally issue a press release stating the main concerns raised by the merger. The CMA will also publish a statement of the terms of reference. The full text of the CMA's decision to open a second-phase investigation will be published shortly afterwards, subject to the excision of confidential information.
The CMA's second-phase reports are published, as are its issues statements, provisional findings and remedies statements during the investigation, although specific items of confidential information are usually excluded. The CMA publishes key submissions made by the parties (e.g. the initial submission and responses to the provisional findings and remedies statement) as well as comments, or summaries of comments, received from third parties.
The parties (and third parties) are given an opportunity to request excisions from the published documents of the CMA to protect confidentiality.
The CMA is required by the Enterprise Act to balance its obligation to be transparent with the confidentiality needs of the parties or third parties. In so doing, it takes into consideration whether the parties or third parties would be significantly harmed by the publication and whether the publication would be against the public interest.
The ICA publishes the notice of notification submission on its website. Moreover, all relevant decisions adopted by the ICA in relation to a concentration are published in the ICA’s Bulletin and website. Parties may indicate at the time of filing or during the proceedings, which information/documents shall be kept confidential. If confidentiality is granted, the ICA publishes a non-confidential version of the decision.
Third parties having a direct and immediate interest in the concentration may request to access the file. However, access is not granted to confidential information/documents.
All documents and information submitted with the HSR form are confidential and are also exempt from disclosure under the Freedom of Information Act, except in limited circumstances such as when required as part of an administrative or judicial proceeding or if disclosed to Congress. If the parties do not request early termination of the HSR waiting period and the agencies do not take any action with respect to the proposed transaction, even the fact that a filing was made remains confidential. Under the HSR Act, if the parties request early termination, the FTC must give notice of such a grant, providing only the assigned transaction number, the identity of the filing parties and the date early termination was granted. In the event of an administrative or judicial proceeding to block the transaction, the reviewing agency could seek to use HSR documents. The parties to such an action typically seek a protective order to avoid public disclosure of their confidential information during the judicial proceeding.
The FCO regularly publishes its decisions (i.e. any decision in phase 2 only) in a partly redacted version (e.g. no business secrets or personal information included) on its website. Beyond that, the FCO will not publish the parties’ notification or any supporting documents or other submissions without the consent of the parties. In practice, parties receive a version of the decision prior to publication on the website, especially in cases where (potentially) confidential information (business secrets, personal information) is mentioned in the non-redacted version. There is, however, no direct legal obligation forcing the FCO to make it available.
The JFTC publishes a summary of its decisions on Phase II cases and even Phase I cases which the JFTC considers important or useful. However, the JFTC redacts business secrets before making information public. Other than that, the information such as the parties’ notification, supporting documents and information submitted to the JFTC is not published by the JFTC.
As mentioned, the BWB publishes the fact that a notification has been made (not the notification as such) and a short description of the concentration on its website.
Further, the BWB publishes a note on its website when a request to open an in-depth (Phase II) examination is made and the notified transaction is cleared.
Besides, Austrian merger control law foresees certain further publications on the BWB’s website such as established infringements of conditional clearances.
Business secrets are generally not at issues regarding such publications.
As noted, the BWB may, however, in its own motion request additional information from market participants in the course of it examining the notified transaction. In so doing, the BWB may want to provide certain pieces of information to third parties. In practice, it appears advisable to provide a non-confidential version of the notification together with the original notification; thereby making clear what the applicant(s) consider business secrets which shall not be disclosed to third parties.
Further, it may be mentioned that final decisions of the Cartel Court are published by inclusion in a special on-line archive (www.ediktsdatei.justiz.gv.at). The publication identifies the parties involved and provides at least the essential content of the decision. Parties have the possibility prior to such publication to comment on issues of business secrets. Decisions by the Cartel Court of Appeals are as a matter of principles published via the federal legal information system (www.ris.bka.gv.at/Judikatur). At least the names of the undertakings concerned are redacted.
In practice, third parties are not granted access to the files of the BWB nor, in general, to the files of the Cartel Court.
All information submitted to the Bureau is subject to strict confidentiality obligations under the Act.
The Bureau does not publish or make publicly available the parties’ notifications, any of their supporting documentation, or other submissions made by the parties such as responses to voluntary information requests.
There is an exception to the general principal of confidentiality for sharing information with other Canadian law enforcement agencies or for the purposes of the administration of the Act. The Bureau’s view is that this exception allows it to share confidential information about a merger review with merger enforcement agencies in other jurisdictions (e.g., the US DOJ/FTC) without a waiver from the parties.
Following the termination of an investigation, the outcome of the review, along with basic information about the proposed transaction, will be included in the Bureau’s public merger registry (see above). In certain complex and important cases the Bureau may post a press release or position statement on its website as well. In those cases, the Bureau will typically share a draft of its press release and position statement with the parties before publication, to allow the parties the opportunity to correct any errors in the drafts.
The resolution initiating the FNE’s investigation as well as the FNE’s decision may be published in the FNE’s website, regardless whether the decision has been reached in phase I or phase II.
The investigation file will be publicly accessible only after the publication in the FNE’s website of the decision of initiation of phase II.
The FNE may, on its initiative or upon request of the interested party, treat certain information as reserved or confidential. Justifications are the protection of the identity of those who have made statements or provided information, or in case the information contain formulas, strategies or trade secrets or any other element the disclosure of which may significantly affect the competitive performance of its owner, or safeguard the effectiveness of the investigation. In these cases, public versions of the documents concerned must be submitted by the parties.
The CPC and the Service are under a statutory duty of confidentiality, infringement of which is a criminal offence punishable with imprisonment up to six months or a fine of up to €1,500 or both.
The CPC also publishes in the Official Gazette of the Republic and on its website a non-confidential version of its decision. The undertakings concerned may request that any part of the decision remains confidential and the CPC will decide whether such information should be treated as confidential. On successful application, the published version of the decision contains redactions of any such confidential parts.
The party to which the CPC addresses a request for information should identify documents, statements and any material it considers to contain confidential information or business secrets, justifying its opinion, and provide a separate, non-confidential version within the time limit set by the CPC for the notification of its opinion.
The pre-notification phase is confidential and no documents or information will be published, should the merger be cancelled by the parties.
The notification in itself (including supporting documents) will not be published on the DCCA’s website, but the DCCA will issue a press release shortly after receiving notification of a merger, which generally includes information such as the names of the par-ties, the type of transaction, and the relevant market(s).
If the DCCA carries out market tests etc., the DCCA may make a non-confidential version of the notification available to third parties.
A non-confidential version of the DCCA’s merger decision is published on its website shortly after a decision has been made.
The following information is published by the Commission:
- the fact of the notification, including the names of the parties involved and a brief description of the proposed concentration. This information is published by the Commission in the Official Journal, in the form of a notice, inviting third-party comments. A draft of this notice is provided by the notifying party (-ies) as part of the notification form;
- the adoption of the Commission’s decision at the end of the Phase I examination and (if applicable) the Phase II examination. The Commission will publish a press release and after some time in a non-confidential version of the decision (see below). If the Commission decides to initiate a Phase II investigation, it will issue a decision setting out its serious doubts which justify the launch of a Phase II investigation. However, this Phase I decision will not be published by the Commission;
- a non-confidential copy of the Commission’s final decision, which is made available on the Commission’s website after the Commission and the parties have agreed which information should be redacted as business secrets. In the case of a short-form decision for simplified procedure cases, the Commission will publish a notice of the fact of the decision in the Official Journal of the EU.
Once the formal filing is made, the FCA publishes a notice stating the nature of the transaction, its rationale in the non-confidential version provided by the notifying party. Neither the filing form nor the supporting documents or submissions made during the review are provided to third parties. Where remedies are submitted, it is only a non-confidential version of the remedies which is provided to third parties for the purpose of the market test.
Once the clearance decision is issued, a notice indicating that it has been issued is published and only a non-confidential version of the decision is thereafter published.
The DG shall not publish the parties’ notification itself, but rather the details outlined in Point 6.5 above. No other documents are published, and moreover the DG has the obligation to take into account the legitimate interest of undertakings in the protection of their business secrets. At the end of the process, the DG’s decision is published.
The fact of notification and decision are both immediately published in the Government Gazette. The former is also published in a daily newspaper, while the latter is posted on the website of the Malta Competition and Consumer Affairs Authority.
Parties are entitled to outline information which they deem is confidential, together with the reasons for such determination.
Parties are not granted the opportunity to review documents prior to publication.
Aside from the public announcement detailed in question 25 above, the NCA must respond to public information law requests from third parties for access to documents in the case file. Confidential business information will be redacted from all materials disclosed.
Public information requests may relate to all documents, emails and written correspondence with the NCA. As such, it is imperative that each document submitted to the NCA is accompanied by a non-confidential version, or an indication of which information is to be regarded as confidential.
Please note that the ultimate decision on what constitutes confidential business information rests with the NCA. However, the NCA’s reasoning must be in accordance with applicable Norwegian law on what constitutes confidential business information.
When a notification is filed, an announcement may be published by the Competition Council on its website and/or in the press. Such announcement usually contains the short non-confidential summary of the concentration which is provided by the notifying party/parties in the introductive part of the notification form. The notifying party/parties may request, based on well-founded grounds, that no announcement be published until the adoption of the decision. In any case, such request would be refused when the complexity of the case and the anticipated effects on competition determines the Competition Council to seek for observations from third parties.
The notification form, the supporting documents and any other submissions made by the parties (e.g. responses to questionnaires, proposals of remedies) may not be published or made available to third parties by the Competition Council to the extent that they contain business secrets or other confidential information the disclosure of which is not considered necessary by the Competition Council for the purpose of the merger control procedure. The notifying party/parties must clearly indicate, based on well-founded grounds, which information or document submitted to the Competition Council constitutes a business secret or other confidential information and must provide a non-confidential version of them.
As regards the authority’s decision, a non-confidential version is published in the Official Journal of Romania or on the website of the Competition Council. Since the Competition Council must take into account the legitimate interest in the protection of business secrets, the notifying party/parties are provided with the opportunity to propose and review the non-confidential version of the decision prior to publication.
KN: The fact of filing of the notification is not made publically available in Serbia. The notification itself, supporting documents any other submissions made by the parties (for example, responses to questionnaires) are not made public.
The Commission publishes on its website only the clearance decision (including the reasoning behind the decision, but excluding the notification itself and supporting documents) after the Phase I review has finished (usually 5-7 days from delivery of the clearance decision to the parties; in certain cases and based on a reasoned request, the publication may be postponed by couple of days).
Opening of Phase II, on the other hand, is publically announced at the Commission’s website with an invitation to market participants to provide information they deem relevant or important.
Furthermore, the parties may mark the confidential information in the notification itself. During the Phase I review, as a standard part of procedure in Serbia, a separate Request for Protection of Confidential Information contained in the merger notification that was filed to the Serbian Competition Commission with an appropriate reasoning behind such request, is submitted soon after the filing.
The document is a formality, in the form of a separate Request, as it just restates the information that is marked as confidential in the notification itself. The Commission will then issue a separate act (so called Conclusion of Protection of Confidential Information), by way of which it usually adopts the Request in its most part. In that way the information marked as confidential are awarded proper protection from the public.
Provision is made under the Act for the right of parties to request that information submitted to the Commission be treated as confidential and a prescribed form is submitted in merger filings for confidentiality claims. The merging parties may claim any document or part of a document as confidential if they can reasonably claim that the information has economic value.
Typically, information relating to customers, financial statements, market share information or documents that only authorised officers of the firm have access to, will be claimed as confidential.
Please see above in respect of the publication of certain documentation by the authorities.
The main legislation that regulates the protection of commercial information is Article 25(4) of the Law No.4054 and Communiqué No. 2010/3 on Regulation of Right to Access to File and Protection of Commercial Secrets (Communiqué 2010/3), which was enacted in April 2010. Communiqué No. 2010/3 puts the burden of identifying and justifying information or documents as commercial secrets to the undertakings. Therefore, undertakings must request confidentiality from the Competition Board and justify their reasons for the confidential nature of the information or documents that are requested to be treated as commercial secrets. This request must be made in writing.
While the Competition Board can also ex officio evaluate the information or documents, the general rule is that information or documents that are not requested to be treated as confidential are accepted as not confidential. Turkish Competition Authority publishes the parties’ notification on its official website (www.rekabet.gov.tr), including only the names of the undertakings concerned and their areas of commercial activity. Lastly, the final decisions of the Competition Board are published on the website of the Competition Authority after confidential business information is taken out.
Pursuant to the Article 12(4) of Communiqué 2010/3, information that has been published, made public, or included in official registers or balance sheets as well as annual reports, together with information that has lost its trade significance due to causes such as the fact that it is five years old or more, may not be deemed trade secret.
Further to that, under article 15(2) of Communiqué 2010/3, the Competition Authority may not take into account confidentiality requests related to information and documents that are indispensable to be used as evidence for proving the infringement of competition. In such cases, the Competition Authority can disclose such information and documents that could be considered as trade secrets, by taking into account the balance between public interest and private interest, and in accordance with the proportionality criterion.
Moreover, under Article 25 of Law No.4054, the Board and personnel of the Authority are bound with a legal obligation of not disclosing any trade secrets or confidential information they have acknowledged during their service.
The parties may file the merger control notification in a confidential mode. At the same time, the parties must clearly indicate the documents and information, which contain confidential information/commercial secrets with the respective substantiation. In that event, the AMC will not publish any confidential documents/information.
The AMC publishes its decisions on merger control notifications on the AMC’s official website within ten business days following the adoption of the respective decision. The decisions contain general information regarding the participants to the concentration and do not contain any confidential information/commercial secrets.
Article 91 of CADE’s internal regulation determines that CADE will publicize the documents and parts of it that are strictly necessary for the understanding of the case. However, article 92 establishes that parties may request that CADE institutes secrecy treatment for documents on the grounds of a legal provision or due to information that may harm the company, giving third-parties an unjustified competitive advantage, such as information on clients, date value and payment method of the operation in question, etc..
Where clearance is sought on a confidential basis the ACCC will not publish any details regarding the clearance application or transaction.
If the transaction is public and a public review is undertaken, the ACCC will list the transaction on its public register (available online). The ACCC accepts information and submissions as confidential and commercially sensitive subject to certain permitted disclosures (for example, if compelled by law). It will not publish or disclose the contents of the application, supporting documents or third party submissions.
Formal clearance and Authorisation
Formal clearance and authorisation are generally public processes, subject to limited claims for confidentiality.
In relation to formal clearance, the CCA requires that the application and supporting material, as well as the ACCC's determination, be published on the ACCC's public register and/or website, subject to claims for confidentiality. Certain information is protected under the CCA as confidential (relating to a secret formula, cash consideration or current costs). Otherwise, determination of confidentiality is at the ACCC's discretion. The applicant has an opportunity to withdraw information (before it is published) if the ACCC determines it is not confidential.
A similar process applies in respect of the Tribunal's treatment of confidential information in the authorisation process (subject to the Tribunal's directions).
During the notification process, information is confidential and only the parties have the right to access the case docket (Article 47 LORCPM and 65 RLORCPM). In addition, the parties have the right to request the authority to declare the information that has been provided to be confidential. Final decisions may be published by the authority but information that has been declared to be confidential during the process will remain as such. Generally, the authority has the right to publish opinions, guidelines, technical criteria, and market studies. Such publications cannot contain information that is deemed to be confidential.