What information may be published by the authority or made available to third parties?
Merger Control (4th edition)
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.
For each notification, the notifying parties are required to provide both confidential version and non-confidential version of the Notification Form or Simplified Notification Form and supporting documents. The non-confidential version may be made available to a third party when SAMR seeks views from that third party.
For notifications which have been prohibited or approved with restrictive conditions, the decisions of prohibition or approval are published timely by SAMR. For notifications cleared without conditions, the individual clearance decisions are not made public, but SAMR weekly publishes the case name, the business operators participating in the concentration and the date of clearance for each case. Such information is available on the official website of SAMR (http://www.samr.gov.cn/fldj/zwgk/).
Additionally, a public announcement will be published immediately after the initiation of a simple case by SAMR (see question 26).
The notifying party should identify documents, statements and any material it considers contain confidential information or business secrets, justifying such view.
A notice that the CPC has received a notification is published soon after filing, which sets out the date of the filing, the names of the undertakings concerned, the nature of the act of concentration and the relevant economic sectors.
The CPC publishes non-confidential versions of its decisions in the Official Gazette of the Republic and on its website. The undertakings concerned may request that any part of the decision remains confidential and be redacted from the final version published by the CPC.
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 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 parties, 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.
Only the final resolution that authorizes, authorizes with conditions or denies the transaction, without the information that the parties have requested to be considered as classified.
The Commission will only share with the public a summary of the notification form drafted by the notifying party itself. The public will eventually have access to the non-confidential final Commission decision. The parties have the possibility to claim confidentiality over some of the information provided to the Commission and the Commission will not share such information with the public at any stage of the proceedings without the parties’ prior permission. This information will be redacted from the final decision.
Third parties demonstrating a “sufficient interest” can apply in writing with the Commission to be granted the status of “interested third party”. Such parties will get access to additional information with the view of informing them of the “nature and subject matter of the procedure”. However, the information shared with interested third parties will also be redacted to reflect any confidentiality claims.
Except for the public announcement made after the receipt of the formal notification (see question 26), the FCA does not publish the notification form nor its supporting documents, which remain strictly confidential.
Market tests (on the transaction or remedies submitted by the parties) are performed on the basis of non-confidential information of documents.
The FCA releases the outcome of the merger review on its website, but the decision itself is published only in a non-confidential version after the notifying party(ies) has been given the opportunity to identify and request that confidential information therein be redacted..
The FCO regularly publishes its decisions ( for merger control that is any decision in phase 2 only) in a partly redacted version ( 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 redacted 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.
Where an acquisition or a merger is being reviewed under a Phase II investigation by the CCI, the CCI directs the parties to the combination to publish the details of the combination in a Form IV within ten working days of the date of such direction. The details required to be published under Form IV include:
- Details of the structure of the transaction
- Details of the combination in the form of the summary explained in question 25 –
- Details of the business activities of the parties;
- Rationale, objectives and the impact of the combination;
- Information about the market(s) in which the parties to the combination overlap – relevant market definition and the list of overlapping products;
- Information with reference to factors considered by the CCI for a competitive assessment of the relevant market and impact of the combination on the relevant market. This includes factors such as level of combination in the market, extent of barriers to entry into the market, extent of effective competition in the market; availability of substitutes, aggregation of market shares of the parties to the combination, removal of competitors, existence of vertical linkage etc.
- Expected timeframe for completion of various stages of the combination
In general, all confidential information relating to the notifying parties will be kept confidential by the CCPC. The CCPC will, in particular, keep confidential business secrets of the parties, such as technical and/or financial information relating to a party's knowhow, methods of assessing costs, production secrets and processes, supply sources, quantities produced and sold, market shares, customer and distributor lists, marketing and business plans, cost and price structures and sales strategies. However, information that is publicly available or that is already otherwise known outside the party making the confidentiality claim will not normally be considered confidential by the CCPC.
The CCPC does not publish notifications it receives, or any supporting documents provided with the notification. A short summary of the parties and the sectors involved in the transaction is included as part of the notice of the notification published on the CCPC’s website. Similarly, the CCPC does not publish submissions received from third parties either at Phase 1 or Phase 2.
The CCPC will publish a notice of its determination on its website once made. The text of the CCPC's determination of a merger is also published on its website, typically within 1-2 weeks of the determination being made. Confidential information will be redacted from the determination and the notifying parties are given an opportunity to make representations as regards confidentiality redactions.
Once the Commissioner's decision is given, the Commissioner's decision and the non-confidential elements of the merger notifications will be scanned and published, unedited, on the Israeli Competition Authority's website. Supporting documents, such as financial statements or responses to information requests, will not be published.
A third party who has the right to appeal the Commissioner's decision will have the right to review the Israeli Competition Authority's file, but this will be subject to limitations, including trade secrets. Sometimes information will only be disclosed to outside legal or economic counsel. Certain information may be disclosed according to requests under the Israeli Freedom of Information Law, 1998, again, subject to limitations on disclosure of trade secrets. Nearly any such disclosure is subject to a procedure whereby the suppliers of information are given the opportunity to object to the disclosure of the information they provided.
If the KFTC deems publication as necessary, the KFTC may publicize certain information, such as the fact that the merger filing was made, the status of its review, and the results of its review, via media reports. If the KFTC decides that the merger is anticompetitive and makes a decision to issue a remedial order, the KFTC will post such decision on the KFTC’s website.
If the KFTC seeks third party opinions during the review process, the KFTC may provide the necessary information to the third party. In addition, interested third parties may request access to information regarding the KFTC’s decision, in which case the KFTC must provide such information if the consent of the party submitting the information is obtained or access is deemed necessary due to public interest.
However, in any case, the KFTC must keep information such as trade secrets confidential, and such confidential information cannot be provided to third parties.
A confidential version of the clearance or resolution is published. Third parties are not allowed to review or access the file.
Full access to file is granted to interested third parties, with the exception of confidential information that is not in the public domain (typically agreements, strategy documents, accounting information, list of the parties' customers and suppliers etc.). The filing parties are obliged to submit a proposal for a non-confidential version of the filing.
Under Section 34 of the PCA, all information disclosed to the PCC shall be generally considered confidential. Exceptions to this rule are:
- Information necessary for the issuance of notices, bulletins, rulings and other documents;
- Information the publication of which is consented to by the notifying entity;
- Documents/information mandatorily required to be disclosed by law; and
- Information ordered published by valid order of a court of competent jurisdiction or of a government or regulatory agency, including an exchange.
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.
For 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, and business secrets) that they believe should be kept confidential, and to submit a non-confidential version of these documents. Failure to do so may 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.
Additionally, 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 consultation with the notifying party(ies), a non-confidential version of the final decision will be published on the PCA’s website.
In addition, to provide guidance and clarity on this matter, in May 2017 the PCA launched a public consultation on a draft version of its Guidelines on the protection of confidentialities in sanction and supervisory procedures. However, the final version of the guidelines has not been adopted yet.
The information on the parties to the transaction, their addresses and main kinds of busi-ness activity, as well as the description of the transaction may be published by FAS.
Parties to the transaction can request FAS to keep information regarding the transaction and the conditions of the approval confidential. In this case, FAS must not disclose this in-formation.
The SCA publishes a summary of the notification on its website. Additionally, the notification is made available for anyone who requests it from the SCA. The notification will upon such a request be redacted to exclude any confidential information, for example trade secrets and other sensitive information. Thus, a non-confidential version of the notification shall be submitted to the SCA together with the notification.
With regard to the publication of the decision of the ComCo to open an investigation proceeding, see question 26.
The publication of the final decision of the ComCo contains the name and domicile of the undertakings concerned, a brief description of the planned concentration, a summary account of the grounds for the decision and the decision itself and is published in the Federal Gazette and the Swiss Official Trade Journal.
In principle, third parties can get access to all documents of the ComCo, including submissions of the parties. However, there are exceptions for business secrets and personal data. The former have to be described, while the latter have to be made anonymous. In case this is not possible, a decision has to be taken on a case-by-case basis. In this regard, the ComCo discloses information to third parties on-ly in a restrained manner. Access to documents according to the Freedom of Information Act is granted only after an investigation has been closed by the authority.
Third parties can only have access to the information when the procedure ends. However, the information that qualifies as confidential can only be known by INDECOPI and the party that submitted it.
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.
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 AMCU publishes limited information, such as the fact that the approval has been granted and the names of the participants.
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 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 stored in the database accessible on the ICA’s 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.
Merger Control Legislation imposes a confidentiality obligation. Thus, third parties do not have access to the case file, save for the publication of the notification in a financial newspaper and the HCC’s official website, as well as the HCC’s decision, which is also published on its website and the Government Gazette. The summary public announcement of the clearance decision on the concentration do not contain data which can constitute a business secret, such as turnover figures, market share figures, names of competitors. The parties are entitled to file and the HCC specifically requests the parties to consider filing a “Confidentiality Request”, to the extent they consider that certain information constitutes a business secret and that its publication could have a negative impact on their business.