The Spanish Markets and Competition Commission’s new guidelines on processing confidential information

On June 4, 2020, the Spanish Markets and Competition Commission (CNMC) published the Guidelines on processing confidential information and personal data in competition law proceedings under Spanish Defence of Competition Act 15/2007 (the “Guidelines”).

The purpose of the Guidelines is to guide companies and other stakeholders on confidentiality requests filed before the CNMC in antitrust and merger control proceedings. It should be taken into account that these confidentiality requests can be paramount for companies and complex to prepare. In particular, it can be difficult to meet the individual reasoning requirements established by the CNMC in the 10-day period envisaged for filing confidentiality requests, particularly in very large cases.

One of the most common problems in antitrust proceedings is the clash between stakeholders’ right to access the information and the right to protection of confidential information, particularly in the context where competing companies usually meet.

With these new Guidelines, the CNMC gives instructions to address this problem and thus establish the confidentiality limits of the information provided in a specific proceeding. The Guidelines confirm the CNMC’s consolidated decision-making practice.

The CNMC, therefore, presents different criteria to assess the confidentiality of the documents. These Guidelines envisage not only how and when to access the files in the different proceedings, but they also highlight that the declaration of confidentiality is usually preceded by a confidentiality request from a party or, in other cases, the CNMC itself declares certain documentation confidential ex officio, always weighing up the interests on a case by case basis taking the specific situation into account. 

Trade secrets

The Guidelines define trade secrets as “any information directly related to the company’s economic activity whose disclosure could cause it serious harm.” The CNMC gives the following examples of information considered trade secrets: the quantities produced and sold or the commercial strategy of the participants in the proceedings in question.

However, the Guidelines show that information will not be considered a trade secret when “the harm” that its disclosure may cause the interested company cannot be justified. 

Prior disclosure

The CNMC will assess whether the data have already been disclosed between the parties or the stakeholders, in which case confidential treatment will be less justified. To define what “previously disclosed” specifically means, the CNMC states that it is sufficient for the potentially confidential data to be known outside the specific scope of the company.

In any case, even if the data can be considered a trade secret and have not been disclosed previously, the CNMC will also analyze whether that information is necessary to understand the facts or the analysis and the assessment of the actions, and to guarantee the other parties’ right to defense. In these cases, the information will not be treated confidentially.

The Guidelines explain that the personal data included in its decisions will be removed, except in the case of the individuals sanctioned for infringing competition regulations, whose full name will be published, in line with the Supreme Court’s position (Judgment of April 9, 2019, app. no. 4118/2017 and Judgment of March 28, 2019, app. no. 6360/2017).

The Guidelines also remind us that the confidentiality arising from legal privilege can only be granted to communications between the external legal advisor and their clients connected with the company’s defense against a breach of competition regulations. The CNMC does not recognize the legal secrecy of lawyers’ communications generally recognized in domestic law but only the restricted confidentiality privilege in lawyer-client communications in relation to external lawyers practicing in any European Economic Area Member State recognized by the European Commission.

If a party does not agree with the resolution denying the requested confidentiality, it may challenge that resolution before the CNMC Council and subsequently before the National Court of Appeals, requesting interim injunctions to avoid the disclosure of the secret in the meantime, which can entail a significant delay in processing the case.

Obviously, the CNMC’s guidelines are not binding for the National Court of Appeals and the parties’ situation from the legal viewpoint is unchanged. Nonetheless, these Guidelines offer participants greater clarity on the confidential aspects of administrative proceedings, regulated by the Spanish Defence of Competition Act. The CNMC seeks to facilitate its functions in antitrust or merger control proceedings, as well as the balance between protecting the confidentiality of certain information of the parties and the right to access certain data of other participants in the proceedings.

However, we believe the Guidelines could have been more ambitious in allowing the parties to prepare and send confidentiality requests. In particular, it would have been helpful to give the interested parties a form or standardized tool for confidentiality requests or a list of admissible grounds for confidentiality that would provide more specific guidance.

Authors: Cristina Vila Gisbert and Diego García Adánez