On 2 June 2015, the Directorate-General for Competition ("DG Competition") published its best practices on disclosure of information in data rooms in Article 101/102 and merger control proceedings. Such best practices provide practical guidance on when and how to use data rooms to disclose in a restricted manner business secrets and other confidential information obtained during proceedings under EU antitrust rules as well as under the Merger Regulation. They explain the role of data rooms, the general principles applied by DG Competition in deciding whether to organise a data room, the scope of the data included in the data room, the organisation of data rooms as well as the involvement of data providers and the role of the Hearing Officer.
The best practices state as a general principle that data rooms are aimed at giving addressees of a Statement of Objections access to the Commission's file in order to protect their rights of defence in exceptional cases where meaningful non-confidential versions of the file cannot be provided or would be excessively burdensome. Therefore, the data room procedure seeks to balance the Commission's duty to protect confidential information of the data providers and the rights of the defence of addressees of a Statement of Objections. It is designed as a unique tool for allowing access to addressees of a Statement of Objections to confidential information included in the Commission's file in a restricted manner, by limiting the number and/or category of persons having access to and use of the information to the extent strictly necessary for the exercise of rights of defence. According to the best practices, DG Competition can decide at its sole discretion whether a data room procedure is appropriate in a particular case taking into account the circumstances of the case at hand, the nature and degree of sensitivity of the information, the progress of the case, the resource implications of operating data rooms, the risk of information leaks and the need for expedition.
With regard to the scope of the data included in the data room, the best practices recall that data rooms have been used mostly for the disclosure of quantitative data relied on in a Statement of Objections, which includes data on sales, price, costs, margins, etc. In exceptional cases, access has also been granted to qualitative data, such as internal strategy documents, to which the same basic principles apply. In addition, the best practices provide that the Commission may anonymise certain data included in the data room by taking any measure to protect the identity and confidentiality of data providers including translating all documents into the same language, removing their document IDs, changing the currency of economic values, redacting countries and territories or aggregating figures.
The best practices also provide practical guidance on the organisation of data rooms. As for the timing of such organisation, although they can be organised at any moment, it is specified that they will normally take place before the oral hearing. The guidance also provides that data room participants are in principle limited to the external economic advisors and external legal counsel of the addressees of a Statement of Objections. In addition, the best practices set out the rules which are to be respected such as the prohibition to take any copy or note out of the data room, the prohibition to progress any external communication from the data room or the obligation for the external advisors to sign a non-disclosure agreement prior to getting access to the data room. They also provide guidance on the "data room report" which is the only document that can be communicated by the external advisors to the addressees of the Statement of Objections with regard to the information in the data room and can only contain non-confidential information after scrutiny by DG Competition services. Finally, the guidance warns that the lack of compliance with the data room rules will result in expulsion from the data room and may also result in damages actions and complaints before the relevant bar associations or other relevant associations in case of violation of deontological rules.
In addition, the best practices include provisions regarding the involvement of data providers, whose consent on the organisation of a data room will be sought and who will be entitled to express concerns on the data room procedure. It follows from the best practices that the data providers' legal counsel may be granted access to the data room for the sole purpose of ensuring that appropriate safeguards are in place.
Finally, persisting disagreement between DG Competition and the addressees of a Statement of Objections in relation to the disclosure of confidential information may be brought before the Hearing Officer who may decide on the issue, including by ordering the disclosure of confidential information in a data room.
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