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COMP ET I T I ON LAW
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Trade Secrets
Definition of trade secrets.
A general definition of trade secrets is
given in the Communiqué and it is stated that, fundamentally, information
and documents capable of damaging the undertaking if revealed are trade
secrets. Following the general definition, information and documents
which are trade secrets pursuant to the specifications of the situation and
undertakings are listed by way of illustration and, within this scope, criteria
such as internal structure of the undertakings, their organizations, financial,
economic, credit, and cash situation are given. After this, information and
documents which may be considered trade secrets are explained, and
the fact that the information and documents have been communicated in
whatever manner to the public and the antiquity of the information and
documents are taken into consideration. Finally, based on the competition
law legislation, it is stated that agreements, concerted practices, or practices
which violated this legislation are not considered trade secrets.
Request for confidentiality.
It is also provided in the Communiqué
that parties may submit a request for confidentiality. Undertakings submit
their request in writing to the Authority. If the Authority accepts the request
of the undertakings, it will not reveal the information. Furthermore, the
Authority may not take into account the requests of confidentiality related
to information and documents which will be inevitably used to prove an
infringement of competition rules.
If the undertaking does not submit any request for confidentiality, the
Authority may either make an evaluation on its own initiative or ask the
undertakings to make an evaluation.
Conclusion
The Communiqué stipulates the persons who may obtain information
from the files and the definition of trade secrets, as well as their protection.
However, the Communiqué, in comparison with the Regulation, does not
discuss some important points, such as the definition of “confidential
information”. These deficiencies should be cured and, in addition, in order
to permit the efficient use of the right of defense, a system more similar to
the system of the European Union would be preferable because it would
differentiate between agreements, concerted practices, and decisions and
practices of associations of undertakings, and merger and acquisition
operations.