COMPETITION • EUROPEAN LAW • PROCEDURE
According to Article 12 of Regulation No 1/2003, the Commission and the competition authorities of the Member States may provide one another with and use in evidence any matter of fact or of law, including confidential information, provided that this information is only used for the purpose of applying Articles 101 or 102 TFEU and in respect of the subject-matter for which it was collected by the transmitting authority. An exemption from the obligation that information only be used for the purposes of applying Articles 101 or 102 TFEU exists where national competition law is applied in the same case and in parallel to EU competition law if this application leads to the same outcome. Transmitted information can be used in evidence to impose sanctions on natural persons where the law of the transmitting authority foresees sanctions of a similar kind in relation to an infringement of Articles 101 or 102 TFEU or, if that is not the case, where the information has been collected in a way which respects the same level of protection of the rights of defense of natural persons as provided for under the national rules of the receiving authority. In this case, however, the information exchanged cannot be used by the receiving authority to impose custodial sanctions.
Article 28 of Regulation No 1/2003 moreover requires the Commission and the competition authorities of the Member States, their officials, servants and other persons working under the supervision of these authorities as well as officials and civil servants of other authorities of the Member States to refrain from disclosing information acquired or exchanged by them pursuant to the regulation and of the kind covered by the obligation of professional secrecy.
However, under the Notice on cooperation within the Network of Competition Authorities (2004/C 101/03), the legitimate interest of undertakings in the protection of their business secrets may not prejudice the disclosure of information necessary to prove an infringement of Articles 101 and 102 TFEU. In the Commission’s view, the term “professional secrecy” used in Article 28 of the Regulation includes business secrets and other confidential information.