When an undertaking is the target of an investigation into anti-competitive practices, the right of access to the file and the protection of confidential information to ensure a fair procedure is a balance that can be difficult to maintain. Confidentiality rings are one of the tools in competition law that try to reconcile these different interests. These procedural tools allow parties to access documents essential for mounting their defence, while ensuring that the confidentiality of sensitive business data is preserved. However, their effectiveness can be affected by the many challenges encountered in their implementation.

Described as a “negotiated disclosure procedure” in paragraph 96 of the Antitrust Best Practices, the confidentiality rings consist of a form of restricted disclosure of the file. Under this procedure, a party negotiates with an information provider from the Commission in order to receive the information contained in the file on its behalf through a small circle of individuals, whose composition is decided by negotiation on a case-by-case basis. They can thus be used both as screening mechanisms, allowing the identification of specific documents of particular interest to the addressee of a Statement of Objections, as well as a means of limiting access to documents which are at the same time confidential and useful for the addressee of the statement of objections. 

Although confidentiality rings in theory offer a pragmatic solution by allowing unrestricted access to the file while preserving the confidentiality of sensitive business information, their effectiveness and fairness have nevertheless been regularly challenged.

Confidentiality rings have played a crucial role in a number of cases, including Ethanol Benchmarks, in which sensitive documents provided by certain parties contained self-incriminating evidence. The Commission faced the challenge of providing access to the file while ensuring that the evidence was not disclosed to parties not involved in the settlement discussions. The Court then confirmed that written communications made during settlement discussions could not benefit from a presumption of confidentiality despite the self-incriminating statements they contained.^[1]Access to confidentiality rings is only granted subject to the conditions set out in paragraph 35 of the Settlement Notice, and the interests of the party to the settlement were sufficiently protected in this situation.

Similarly, in JPMorgan Chase and Others v Commission, the General Court reaffirmed the need for confidentiality rings in safeguarding both the right to a fair trial and the integrity of sensitive business information.^[2]Nevertheless, both the General Court and the Court of Justice on appeal rejected allegations that publication of the non-confidential version of the Commission’s decision would undermine the presumption of innocence and the reputation of the individuals involved in the case.^[3] Confidentiality is not an absolute right, and interim measures such as those requested by the parties must also meet strict conditions. 

Although confidentiality rings are crucial for ensuring the confidentiality of sensitive business information, is there not too much of a risk that the balance will tip in favour of confidentiality, to the detriment of procedural fairness?  Several shortcomings can be identified:

• Restricted access to evidence: given that only a limited group – usually economic experts, legal representatives or an external lawyer – is granted access to key documents, the ability of the parties to ensure a fair defence is at risk of being compromised. After establishing in Courage v Crehan that individuals must be able to claim damages for harm caused by anti-competitive conduct,^[4] the Court of Justice clarified in cases such as Donau Chemie and Pfleiderer, in the context of damages actions, that access to evidence is essential for the effective exercise of those rights. The Court ruled that a systematic refusal to grant access to evidence could undermine the effectiveness of European competition law and that national courts must balance the need for disclosure with the protection of confidential information.^[5] In order to guarantee the exercise of the right to full compensation, shouldn’t the relevant evidence be disclosed in full?
• Procedural delays: negotiating the extent of the information to be disclosed and the confidential treatment of the data can be time-consuming, potentially slowing down the proceedings and harming the parties’ ability to defend themselves. 
• Burdens: although confidentiality rings are essential to protect sensitive business information, they also impose strict obligations on the parties involved, putting their own liability at stake for breaches.

            In short, confidentiality rings are a vital tool for ensuring the delicate balance between the right of access to the file and the protection of sensitive business data. Nevertheless, as the case law of the Court of Justice reminds us, the right of access to the file remains fundamental to guarantee the parties involved a fair defence. If the procedure surrounding confidentiality rings is too restrictive, it risks compromising the very fairness it is intended to protect and, in so doing, becoming an obstacle to justice. Their application must accordingly be closely monitored in order to guarantee both procedural fairness and the right to a full defence.

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^[1] Order of 10 September 2019, Lantmännen and Lantmännen Agroetanol v Commission, C–318/19 P(R), EU:C:2019:698, para. 52.

^[2] Order of 25 October 2018, JPMorgan Chase and Others v Commission, T-420/18 R, EU:T:2018:724, para. 38.

^[3] Order of 21 March 2019, JPMorgan Chase and Others v Commission, C‑1/19 P(R), EU:C:2019:230, paras. 32-35.

^[4] Judgment of 20 September 2001, Courage and Crehan, C-453/99, EU:C:2001:465, para. 26.

^[5] Judgments of 6 June 2013, Donau Chemie e.a., C‑536/11, EU:C:2013:366, paras. 30-32, and of 14 June 2011, Pfleiderer, C-360/09, EU:C:2011:389, paras. 30-31.

When an undertaking engages in anti-competitive behaviour, it may be necessary to intervene before a final decision is made, finding the infringement and imposing a sanction. Article 8 of Regulation 1/2003 addresses this problem by allowing the Commission to take interim measures to prevent serious and irreparable damage to competition. However, despite its usefulness, this tool has rarely been applied to date. Why is this, and how can the Commission make full use of it?

Article 8 of Regulation 1/2003 lays down three cumulative conditions for the Commission to be able to take interim measures on its own initiative:

1. A prima facie infringement: the Commission must prove the appearance or likelihood of an infringement, without conducting an analysis as detailed as for a final decision. 
2. Serious and irreparable harm: there must be a risk of serious harm to competition, leading to a change in market that is difficult to reverse.
3.  Temporary measures: Article 8(2) specifies that these measures are temporary and renewable where necessary and appropriate.

Prior to the adoption of Regulation 1/2003, the Commission could only take interim measures at the request of complainants in accordance with Article 3 of Regulation No. 17. However,in Camera Care, the Court of Justice recognised that the Commission should be able to take interim measures which are “which are indispensable for the effective exercise of its functions and, in particular, for ensuring the effectiveness of any decisions requiring undertakings to bring to an end infringements which it has found to exist”^[1]. In other words, by recognising this implicit power, the Court sought to preserve and strengthen the effectiveness of European competition law.^[2]

While the Commission has applied these measures on several occasions, paradoxically, the introduction of Regulation 1/2003, which formally granted it the power to take such measures autonomously, has resulted in only one use so far in the Broadcom case^[3]. Accused of abusing its dominant position by imposing exclusive purchasing obligations, Broadcom was obliged by the Commission to suspend the exclusivity clauses in its contracts. This decision also encouraged Broadcom to accept commitments under Article 9 of Regulation 1/2003.

But why are these measures, so useful in theory, so rarely used in practice? One of the reasons probably lies in the complexity of the procedure imposed by Regulation 1/2003. In order to adopt interim measures, the Commission must issue a Statement of Objections, give the undertaking concerned access to the file, allow it to submit written comments, and organise a hearing if requested. Some authors also point to other factors, such as:

• the removal of the possibility for complainants to apply for interim measures, 
• the fact that complainants can no longer request interim measures solely based on the harm caused to them, as the Commission can now only adopt such measures if they are likely to cause serious and irreparable harm to competition itself, 
• the need for the Commission to adopt a more economic approach to Articles 101 and 102 TFEU, 
• or even the ‘shock’ of the order of the President of the General Court in the IMS Health case,^[4] which suspended the Commission’s decision on interim measures.

However, there exist several ways in which interim measures could be applied in practice:

• Simplification of the procedure: consideration could be given to holding a hearing once the measures have been issued and reducing the need for written comments, particularly in cases of extreme urgency. Access to the file could also be limited to information directly related to the interim measures. 
• Lowering the threshold for intervention: some Member States have lowered the legal threshold for intervention. A simple ‘reasonable suspicion’ could suffice. Similarly, ‘serious harm’, without necessarily having to be irreparable, would give the Commission greater flexibility.
• Restoring the parties’ right to request interim measures: as provided for in Regulation No. 17, the parties could once again be given the right to request interim measures from the Commission and challenge any refusal, which could make this mechanism attractive once again.

In 2017, Commission Vestager stated that “if you have a tool, you should of course ask yourself why it is never used”^[5]. With the emergence of fast-moving digital markets, the use of interim measures conferred on the Commission by the DMA seems all the more useful and necessary to nip anti-competitive behaviour in the bud. If the Commission really wants to live up to its ambitions, its toolbox must not remain closed.

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^[1] Order of 17 January 1980, Camera Care Ltd v Commission of the European Communities, Case 792/79 R, EU:C:1980:18, para. 18.

^[2] Despoina Mantzari, “Interim Measures in EU Competition Cases: Origins, Evolution and Implications for Digital Markets”, CLES Research Paper Series 1/2020, p. 1-22, at p. 5. 

^[3] Commission decision of 16 October 2019, Broadcom, case AT.40608.

^[4] Order of 10 December 2005, IMS Health v Commission, T-184/01, EU:T:2005:95.

^[5] Rochelle Toplensky, “EU considers tougher competition powers”, Financial Times, 2 July 2017, retrieved 28 May 2025, https://www.ft.com/content/7068be02-5f19-11e7-91a7-502f7ee26895.