In November, external legal and economic advisers, in-house counsel and regulators joined Competition and Markets Authority (CMA) staff to discuss how, in its investigations, the CMA can best balance its duty to disclose certain information for reasons of fairness with its obligation to protect any sensitive material it gathers.
In several recent investigations, including those into the energy and banking sectors, the CMA has set up confidentiality rings and disclosure rooms. Through these methods, confidential information is disclosed under strict conditions to a limited number of people (generally parties’ external advisers), safeguarding confidentiality as far as possible while still ensuring parties can comment effectively on CMA findings and put their case.
Participants at the roundtable discussed the CMA’s recent use of these methods and how its process might be further improved in the future.
Following that discussion, the CMA has today published templates for the undertakings and rules that advisers and firms must sign up to before being given access to a disclosure room or confidentiality ring. These will help guide businesses and advisers on the CMA’s expectations and assist in planning for such events.
Simon Constantine, Director of Policy & International, said:
This roundtable was just one part of the CMA’s continuing efforts to improve the efficiency and robustness of our investigations. These events give us the chance to hear first-hand the views of those businesses and advisers directly involved in those processes.
Nigel Parr, a partner at Ashurst LLP, who was a panellist at the event, said:
The ability of competition authorities to take fair and robust decisions in cases depends crucially on access to evidence in all its forms – but also on the ability of affected parties to review and comment on that evidence. The interests of those providing the data need to be safeguarded as well and this is not an easy balance to strike. The CMA should be commended for organising this event and seeking to ensure that it gets that balance right.
Another panellist, Rachel Webster, director at Frontier Economics, added:
The roundtable was very welcome, given the importance of effective engagement between investigation parties and the CMA in creating confidence in decisions taken. The discussion helped identify some practical, achievable steps that could build further on the improvements made in how confidentiality rings and disclosure rooms are run – the templates published today are one good example of this.
Charles Hollander QC introduced the event and gave a speech outlining the legal context and previous case law on the issue of disclosure.
Notes for editors
- More detailed guidance on transparency and disclosure as it relates to specific areas of the CMA’s work is available in other CMA documents, including: Mergers: Guidance on the CMA’s jurisdiction and procedure (CMA2); Market studies and market investigations: supplemental guidance on the CMA’s approach (CMA3); Transparency and disclosure - statement of CMA’s policy and approach (CMA6); Guidance on the CMA’s investigation procedures in Competition Act 1998 cases (CMA8); Applications for leniency and no-action in cartel cases (OFT1495); and Chairman’s guidance on disclosure of information in merger inquiries, market investigations and reviews of undertakings and orders accepted or made under the Enterprise Act 2002 and Fair Trading Act 1973 (CC7 revised).
- This discussion follows previous roundtables held by the CMA to discuss current competition law issues with external stakeholders, including those looking at Vertical restraints: new evidence from a business survey and Commitments in competition enforcement: CMA roundtable.
- For more information on the CMA see our homepage or follow us on Facebook, Twitter @CMAgovuk, Flickr and LinkedIn.