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CCI Revamps Confidentiality Regime

By April 21, 2022 No Comments
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On April 8, 2022, the Competition Commission of India (‘CCI’) notified amendments to the process of reviewing confidentiality under Regulation 35 of the Competition Commission of India (General) Regulations, 2009 (‘General Regulations’). These amendments have been introduced after public consultation on a proposal to amend the confidentiality regime. The revisions seek to simplify the process of claiming confidentiality over information submitted to the CCI.

KEY CHANGES

●   Self-certification of Confidential Information

■   Parties claiming confidentiality will have to file an undertaking confirming that the information over which confidentiality is claimed meets the parameters mentioned under the General Regulations i.e., (i) the information is not available in the public domain; (ii) the information is known only to limited employees, suppliers, distributors and others involved in the party’s business; (iii) adequate measures have been taken by the party to guard the secrecy of the information; and (iv) the information cannot be acquired or duplicated by others.
■  This self-certification would automatically grant confidentiality over information claimed as confidential. In case a false undertaking is submitted, the CCI is empowered to take action against individuals under the provisions of the Competition Act, 2002 (‘Act’).

●   Setting Up of a Confidentiality Ring

■   Where necessary, the CCI can create a confidentiality ring comprising authorised representatives of the parties. These representatives may access confidential information of other parties, including information contained in the confidential version of the Director General’s report.
■   The complainant will only be part of the confidentiality ring, if the CCI considers it necessary.
■   The CCI will have the power to decide the extent of information to be made accessible through, as well as the number of members to be included in, the confidentiality ring.
■    Representatives of the parties will need to execute undertakings to confirm that the information received by them as part of the confidentiality ring will not be disclosed to those beyond it, including to the other employees of the party (and its subsidiaries, joint ventures, etc.) or third parties. Breach of these undertakings can result in proceedings under the Act.

●   Confidentiality over Personal Information

■   Information collected during search and seizure operations, email dumps, call details, or any other personal information will be marked confidential and kept separately.

KEY TAKEAWAYS

These amendments are a welcome step and are consistent with global best practices and mature jurisdictions including the European Union and the United Kingdom. The self-declaration of confidentiality will simplify the inquiry process, do away with the existing clause-by-clause disposal of a party’s confidentiality request by the Director General and the CCI, and make the process more expedient. Similarly, while in the recent past the CCI has been following the practice of constituting confidentiality rings, its formal inclusion in the General Regulations is a step towards balancing the competing interests of information providers and right of parties to defend themselves. Presently, parties can only access non-confidential versions of documents filed by other parties which can compromise their ability to present an effective case. We hope that the CCI will continue to uphold the principles of natural justice while enforcing these amended regulations.