According to Directive No 2016/943 of 8 June 2016  on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosures, the term “trade secrets” means information meeting the following requirements:

-it is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question,

– it has commercial value because it is secret,

– it has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.

According to the Commission, information about an undertaking’s business activity constitutes business secrets insofar as disclosure of it could result in serious harm to its interests. The General Court defines business secrets as those which cover, inter alia, commercial, competitive, financial or accounting information which are not normally accessible to third parties to the undertaking and which, by reason of their newness, are not historical in nature.

The right to the protection of business secrets in the administrative procedure must be balanced against the safeguarding of the rights of defense and in particular the rights of access to the investigation file. Article 27 of Regulation No 1/2003 provides that nothing prevents the Commission from disclosing and using information necessary to prove an infringement. Confidentiality does not therefore prevent any disclosure if the information concerned is incriminating or exculpatory evidence. In this case, the EU authority must assess all relevant elements, such as the relevance of the information in question and its probative value, whether it is indispensable, the degree of sensitivity, the preliminary view on the seriousness of the infringement, in order to determine in respect of each document whether the need for disclosure is greater than the resulting harm for the defense. The person or undertaking claiming business secrecy must, within the time-limit set by the Commission, provide it with a non-confidential version to which the parties concerned may have access.

Where the Commission intends to publish information that an undertaking considers as covered by business secrecy, the undertaking may refer the matter to the Hearing Officer by virtue of Commission Decision No 2011/695 of 13 October 2011. The same recourse is available to a party who, wishing to consult a document covered by secrecy, has been refused by the Commission. When dealing with an application for non-disclosure of information communicated by an undertaking to the Commission in order to obtain leniency, the Hearing Officer must not be limited to examining the rights of the undertaking arising solely from the rules intended to afford specific protection against disclosure to the public but must also apply the principles of the protection of legitimate expectations and equal treatment.