Confidentiality During Competition Investigations: Comparing the Perspective of Agencies and Practitioners

CPI ICN Column edited by Maria Coppola (U.S. Federal Trade Commission)

Confidentiality During Competition Investigations: Comparing the Perspective of Agencies and Practitioners – Andressa Lin Fidelis & Paul O’Brien¹

In 2012, the International Competition Network’s (ICN) Agency Effectiveness Working Group (AEWG) began a multiyear project on competition agency investigative process. The project’s mandate is “to increase understanding among ICN members of how different investigative processes and practices can contribute to enhancing the effectiveness of agencies’ decision-making and ensuring effective protection of procedural rights.”² In its first year, the project addressed investigative tools³ and the agency transparency practices.⁴ In 2014, the project examined the topic of agency confidentiality practices during investigations.

Confidentiality plays a pivotal role in competition investigations. The protection of confidential information submitted during an investigation protects the legitimate interests of companies, and indeed competition, by preventing competitors from receiving access to competitively sensitive information such as business secrets. Confidentiality protections also support the credibility of competition enforcement agencies and their ability to compel and obtain necessary information from companies that they investigate.

A key challenge faced by agencies in applying confidentiality rules is balancing the need t