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files upon written request from the time they learned that an investigation
has been opened against them until the end of the last written plea period.
The parties, if no new evidence is discovered during the investigation, may
use their right only once. After examination by the investigation committee,
a request for access may be postponed or refused, so that the investigation is
conducted in a safe and healthymanner. If the parties’ request is accepted, the
documents in the file are given to the interested parties by being reproduced
via
photocopy or by being transferred into an electronic medium.
The Communiqué differs from the Regulation on two points. As a
matter of fact, it is firstly stated in the Regulation that the right of access
to files is granted, in principle, on a single occasion for agreements,
concerted practices, and decisions and practices of associations of
undertakings (§27 of the Regulation) and at every stage of the procedure
for merger and acquisition operations (§28 of the Regulation). Contrary
to this, in the Communiqué, in spite of the fact that it is stated that the
rules provided for agreements, concerted practices and decisions and
practices of associations of undertakings may also be applied by analogy
to mergers and acquisitions if appropriate, no distinction is made in terms
of frequency of use. Additionally, another distinction is also made in the
Regulation between the complainant and the other concerned parties and
it is provided that, in principle, the complainant does not have a right of
access to files (§30 et seq. of the Regulation). Nevertheless, no distinction
is made in the Communiqué.
Information and documents within the scope of the right.
It is provided
in the Communiqué that the parties of the investigation or the managers
or employees of the undertaking or association of undertakings against
whom an administrative fine is requested may have access to all kinds of
evidence discovered and documents prepared about them within the body
of the Competition Authority (hereinafter referred to as the “Authority”).
Internal written communications of the Authority and information and
documents containing trade secrets and confidential information related
to other undertakings, association of undertakings and persons are
excluded. Nevertheless, although the definitions of both “internal written
communication” and “trade secret” are given in the Communiqué, the
definition of “other confidential information” is not given. The definition
of “other confidential information” is given in the Regulation (§19 and 20
of the Regulation).