The Competition Commission has published draft guidelines on its handling of confidential information, open for public comment until 7 March 2025. These guidelines reflect the established practice of the treatment of confidential information but propose a higher standard for parties to claim information as confidential, favouring broader disclosure where third-party interests are involved.
The competition authorities frequently handle highly confidential (and competitively sensitive) information that appropriately requires protection from disclosure. To manage this, the Competition Act prescribes an effective regime for protecting confidential information from disclosure, while ensuring that these processes cannot be superstitiously abused to avoid exposure during public processes that would be contrary to the tenets of procedural fairness. This tried-and-tested regime has proven effective yet has not been without challenges to the competition authorities and parties alike.
The Commission has now published proposed guidelines to guide parties participating in processes before it, on how to claim information as confidential and, importantly, on how the Commission will appraise and treat confidential information. This is specifically in respect of:
- Identifying and claiming information as confidential
- Parties wishing to claim information as confidential must, in the prescribed form, provide substantiated reasons as to why the information is confidential and, cumulatively, meets the elements definition set out in the Competition Act by being firstly trade, business or industrial information belonging to a firm; secondly having a particular economic value; and thirdly, information that is not publicly available or known. In other words, the Commission requires parties to provide sufficient substantiation for claiming confidentiality that must be specific in identifying the information and cannot be phrased in broad terms.
- Blanket confidentiality claims should be avoided and only those parts of documents that qualify as confidential information should be claimed as such.
- Historical, aggregated or numerical information expressed in ranges may not meet the requirements to be treated as confidential.
- Public non-confidential submissions are to be produced to facilitate participation
- The Commission reiterates that information that is not claimed as confidential may, without the consent of the owner of the information, be shared with members of the public who request that information.
- In market inquiries specifically, parties must submit redacted, public versions of all submissions shortly after the confidential submission is made.
- Although not stated in the guideline, this also applies to merger notifications where the Commission requires parties to file a non-confidential version of the merger notification at the time of filing the merger.
- Merger notification should furthermore not be too heavily redacted to render the participation of trade unions and employee representatives as ineffective. To ensure effective participation, merging parties may consider preparing a version of the redacted merger filing that can be shared with employee representatives but which is less redacted than the public non-confidential version. The Commission is of the view that certain ordinarily confidential documents such as strategic plans that speak to or may impact upon employment issues should be disclosed to trade unions and employee representatives – this may, however, prove risky and in those instances, an appropriate non-disclosure regime should possibly be pursued.
- Access to confidential information by parties who are not the owners of the information
- The Commission acknowledges that a useful practice has developed for the exchange of confidential information between counterparties to conclude appropriate confidentiality undertakings and avoid protracted applications for the disclosure of confidential information.
- Third-party confidential information (i.e. of a party not immediately involved in the relevant processes before the Commission) may only in the appropriate circumstances (such as contested proceedings) be disclosed to external advisors subject to appropriate confidentiality and non-disclosure undertakings being signed.
- This regime also applies to third parties that formally participate or intervene in matters before the Commission or the Tribunal. That said, access to confidential information will be assessed taking into account all relevant factors (including the nature of the parties’ participation in the process), and any requests by third parties must substantiate why the information is relevant, of probative value and the prejudice that arises from non-disclosure.
- Determinations on whether information is confidential
- The Commission seeks to implement an expeditious process to deal with disputes surrounding confidential information to enable it to focus its efforts on its investigative and prosecutor functions.
- The Commission may decide whether information submitted to it is, in its assessment, confidential, subject to the owner of the information being able to challenge that determination before the Competition Tribunal or Competition Appeal Court (as the case may be).
- Where the Commission intends to make such a decision, it will first invite the party to whom the information belongs, to make representations and advise them of their right to challenge such a determination through processes before the Tribunal.
- Where the Commission intends publishing a document that contains confidential information (such as reasons for a decision or the outcome of an investigation) it must provide a copy of the document available to the relevant party before publication, to enable the party to exercise its right to approach the Tribunal to decide on the confidentiality of the information.
In conclusion, the draft guidelines are aligned with the established practice of the treatment of confidential information, however, it seeks to raise the bar by ensuring compliance by parties of claiming information as confidential in favour of broader disclosure where third party interests are involved.
For further information on these draft guidelines, please contact Leana Engelbrecht (leana@alchemylawafrica.com).