Confidentiality rings have become a familiar feature of EU competition proceedings, particularly in cases where sensitive commercial information must be handled without compromising the rights of defence. These mechanisms, once considered exceptional, are now mainstream tools used in both administrative enforcement and litigation before the EU courts. Yet their increased prevalence raises an important question: are confidentiality rings genuine safeguards ensuring fairness and transparency or are they evolving into legal fictions that mask structural imbalances in procedural rights?
The European Commission has made it clear that confidentiality rings serve a pragmatic function: to allow restricted access to otherwise confidential information, typically by external counsel and independent experts, in order to enable effective defence while preserving the integrity of business secrets. Their role is acknowledged in the Commission’s 2015/2018 best practices, and more formally incorporated in judicial proceedings under Article 103 of the General Court’s Rules of Procedure.
However, the growing reliance on confidentiality rings has not gone unchallenged. The key concern is whether this procedural tool is being used to paper over deeper procedural inadequacies, namely, the persistent tension between the right to effective judicial protection and the Commission’s obligation to protect third-party confidential information under Article 339 TFEU. The current framework places confidentiality rings at the centre of a delicate balancing exercise. The case law is clear that the Commission cannot base its decisions on evidence that the accused has no opportunity to access or contest. Yet, the same case law (e.g. Cementos Portland, NKT) accepts that access can be limited to a closed circle of lawyers or experts, often to the exclusion of the undertaking’s own personnel. The result is a procedural arrangement that allows for an adversarial exchange.
Confidentiality rings are a compromise, a way to maintain the secrecy of commercially sensitive information without violating defence rights. But here lies the risk of circular reasoning. The more the Commission relies on confidentiality claims to limit disclosure, the more necessary it becomes to rely on confidentiality rings to restore fairness. Yet this solution may only reinforce the underlying opacity, particularly when the enforcer is judge, evidence-keeper, and facilitator of access.
Moreover, the case-by-case nature of confidentiality rings introduces inconsistencies. The composition of rings, the level of information disclosed, and the conditions of access vary widely. In some cases, the Commission may push for broad access; in others, information providers (often competitors or leniency applicants) may refuse consent, effectively limiting the scope of the ring. There is no clear legal standard determining when a ring is appropriate, who should be admitted, or what safeguards must be in place. As a result, enforcement risks being guided by procedural negotiations rather than legal principle.
The General Court, to its credit, has developed a more structured framework. Under Article 103 RoP, the Court can assess whether confidential information should be disclosed to a party’s legal counsel under protective measures. In doing so, it can impose confidentiality rings ex officio, subject to strict undertakings. This judicial approach arguably provides a more robust model; less reliant on consent, more grounded in the right to adversarial proceedings. Yet even this system is not immune to criticism. The Court’s discretion in balancing confidentiality against defence rights is necessarily subjective, and undertakings often have no clarity ex ante on what level of access they will be granted.
Which leads to the deeper question: have confidentiality rings become too comfortable a solution? Are they now a procedural shortcut that avoids addressing the real problem, namely, the Commission’s dual role as investigator and arbiter of access to evidence? There is a danger that confidentiality rings, rather than narrowing the scope for discretion, actually expand it. They depend on mutual agreement, but also on Commission-managed opaque frameworks. They promise fairness, but often deliver a filtered version of it.
Ultimately, confidentiality rings must be judged not by their frequency of use, but by their contribution to meaningful procedural rights, without shielding flawed enforcement practices from judicial scrutiny. They must be governed by clear criteria, enforceable safeguards, and an unambiguous commitment to equality of arms. Otherwise, they risk becoming just another tool of administrative convenience; one that gives the appearance of procedural fairness while quietly undermining it.
Co(E)mpetition Procedure 