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COMP ET I T I ON LAW

105

Right of Access to Files and Protection of Trade Secrets in

Competition Law

The Head of the Department of the Competition Authority, taking

into account the Council Regulation

(EC) dated December 22, 2005 and

numbered 2005/C 325/7 (hereinafter referred to as the “Regulation”),

issued the Communiqué on the Rules for Access to Files and the Protection

of Trade Secrets numbered 2010/3

(hereinafter referred to as the

“Communiqué”). The Communiqué entered into force by being published

in the Official Gazette dated April 18, 2010 and numbered 27556. The

Communiqué only concerns investigations which will be opened after that

date.

The Communiqué determines, on the one hand, the procedures and

principles related to the use of the right of the parties to gain access to files

and, on the other hand, the determination of the trade secret character of

information discovered during the application of the Act on the Protection

of Competition No. 4054 (hereinafter referred to as the “Act”) and the

procedures and principles related to the protection of information and

documents classified as trade secrets.

Right of Access to Files

Purpose and definition of the right.

It is stated in the General Ground

of the Communiqué that the right of access to files has been regulated in

order to permit the efficient use of the right of defense (“equality of arms”).

However, the definition of the right is neither given in the Communiqué

nor in the General Ground of the Communiqué. For that reason, this right

should be understood as being similar to what is expressly stated in the

Regulation, i.e., the determination of persons who have the right of access

to files (§3 of the Regulation).

Use of the right.

The parties of the investigation and the managers or

employees of the undertaking or association of undertakings against whom

an administrative fine has been requested may use their right of access to

Article of April 2010

1 To consult the Council Regulation, see the following link:

:C:2005:325:0007:0015:EN:PDF

2 To consult the Communiqué, see the following link:

geler/belge504/2010_3.pdf