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Right to Be Heard or Protection of the Confidential Information? Competing Guarantees of Procedural Fairness in the Proceedings Before the Competition Authority

Yearbook of Antitrust and Regulatory Studies, Vol. 3, No. 3, 2010

18 Pages Posted: 16 Jul 2011 Last revised: 30 Oct 2012

Maciej Bernatt

University of Warsaw, Centre for Antitrust and Regulatory Studies

Date Written: December 29, 2010

Abstract

The concept of procedural fairness plays an important role in the enforcement of competition law, which must not only be effective but also fair. Thus, legal institutions should guarantee a proper level of protection of the values of procedural fairness. This paper is dedicated to the possible conflict between the guarantees of procedural fairness that find their expression in the right to be heard and in the protection of confidential information. Both guarantees, the right to be heard on the one side, and the protection of confidential information on the other, should be properly balanced. Unlike EU law, Polish legislation and jurisprudence proves to be inefficient in this respect. Article 69 of the Competition Act fails to show clearly what the limits of the protection of confidential information are in situations when the right to be heard of other parties of antitrust proceedings is at stake. Business secrets are predominantly protected over the right to be heard also in the jurisprudence of Polish courts. By contrast, the Competition Act does not seem to properly protect confidential information other than business secrets. Such situation poses a risk for the adequate level of protection of procedural fairness in Polish antitrust enforcement. Moreover, neither Polish legislation nor jurisprudence explains to companies what shall prevail in the case of a concrete conflict between the protection of business secrets and the right to be heard. An answer to this questions is needed seeing as proof of a competition law infringement which should be accessible to the parties, can at the same time constitute a business secret.

Keywords: procedural fairness, right to be heard, protection of business secrets, confidential information, right of defence, antimonopoly (antitrust) procedure

Suggested Citation

Bernatt, Maciej, Right to Be Heard or Protection of the Confidential Information? Competing Guarantees of Procedural Fairness in the Proceedings Before the Competition Authority (December 29, 2010). Yearbook of Antitrust and Regulatory Studies, Vol. 3, No. 3, 2010. Available at SSRN: https://ssrn.com/abstract=1874796

Maciej Bernatt (Contact Author)

University of Warsaw, Centre for Antitrust and Regulatory Studies ( email )

Warsaw
Poland

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