The Brazilian Constitution (article 37) determines that transparency is one of the principles that govern the activities of public authorities. As a result, procedures, whether judicial or administrative, have public access as a rule, and secrecy as an exception. In the procedures related to competition investigations and control of structures (mergers) it is nodifferent. The Brazilian Competition Law (Law n. 12.529/11) contains several provisions regarding the confidentiality of the records and documents produced in proceedings before the competition authority. Article 49 of Competition Law provides that the Conselho Administrativo de Defesa Econômica (CADE), the Brazilian competition authority, will ensure the confidential treatment of documents, information and procedural acts necessary for the elucidation of the facts or required by the “interest of society”. The sole paragraph of article 49 provides that parties may request confidential treatment of documents or information, in the time and manner defined in CADE’s Statutes. With the establishment of an Administrative Proceeding, the fourth paragraph of article 70, defines that the party being investigated is assured broad access to the Court’s records, assuring the adversarial principle – that to each party involved in a procedure has been given the chance to affirm their rights and expose their arguments – and the exercise of the right of defense.
The Statutes of CADE regulate access to documents in richer detail, classifying the level of secrecy into four levels of access to records, information, data, communications, objects, and documents related to all sorts of administrative proceedings (article 49 of Statutes): (i) public, the regular rule, when it may be accessed by any persons; (ii) restricted access, when access is only granted to the party that presented the document/information, to investigated parties, and other persons according to the case authorized by CADE; (iii) confidential, when access is only granted to those authorized by CADE and to the government authorities responsible for issuing an opinion or decision; and (iv) under seal, when limited access is granted only by judicial order. The first paragraph of article 51 provides that the parties are granted full access to all documents considered in CADE’s decision before the end of the discovery phase of administrative proceedings to impose sanctions for antitrust violations, confirming the provision of access to documents provided for in the Brazilian Competition Law.
The Charter of Fundamental Rights of the European Union (CFR) is an extremely relevant source for the procedural aspects of EU Competition Law. Article 41 of the CFR guarantees the citizen the right to good administration, including the "right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union". The guarantees include the right to be heard before a decision is made, the obligation of the administration to give reasons for its decisions, and "the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy".
Access to a file in cases of investigation of anticompetitive conduct, such as cartels, is, as a rule, only given to the addressees of a statement of objections. According to article 27(2) of Regulation 1/2003: "the rights of defense of the parties concerned shall be fully respected in the proceedings. They shall be entitled to have access to the Commission’s file, subject to the legitimate interest of undertakings in the protection of their business secrets". The same article provides that access does not extend to confidential information, internal Commission documents and communication between national competition authorities and the Commission. In merger procedures, article 18(3) of Council Regulation n. 139/2004 (Merger Regulation) provides that: "Access to the file shall be open at least to the parties directly involved, subject to the legitimate interest of undertakings in the protection of their business secrets".
Regarding the access of interested third parties to documents and antitrust leniency agreements (mainly for damages claims), it is important to note two cases, Pfleiderer (C-360/09) and Donau Chemie (C-536/11), from 2011 and 2013, respectively. Both cases involve access to documents and statements presented in the context of leniency programs, and bring the understanding that it was possible to grant access to these documents provided that the legal interests involved were considered by the national court. Contrary to the provisions of these two precedents, the Damages Directive (2014/104/EU), subsequent to the judgments, in the article 6(6) expressly prohibits national courts to order a party or a third party to disclose leniency statements and settlement submissions.
The two United States government antitrust enforcement agencies are the Federal Trade Commission (FTC) and the Department of Justice Antitrust Division (DOJ). Each of the agencies has its own competencies and procedural rules. As a general rule, during the course of an investigation, the party or parties under investigation do not have access to the case file. But it is natural that the agencies share their concerns with potential defendants, as well as their general view and understanding of the investigated facts. They cannot share confidential information submitted by third parties.
While during the course of the investigations the parties have no access to the case file, the case file is disclosed just at the moment that the investigation becomes a filed case before a judicial (in the case of DoJ investigations) or administrative court (in case of FTC investigation). At this moment individuals external to the Agency may obtain access to the files. In federal court cases the U.S. Constitution and the Federal Rules of Civil Procedure (FRCP) guarantee an extensive review of the evidence that the agency has used to build the case. For administrative litigation, the FTC’s Part 3 rules guarantees similar rights to the Federal Rules of Civil Procedure.
Finally, there are a diversity of rules that protect confidential information, mainly those obtained from third parties, as competitors, which the disclosure may directly affect the course of the investigation, the agencies’ enforcement activities and policies, and expose business or industrial related information and secrets.