CCI updates its Confidentiality Regime

Apr 13, 2022
  • Author(s) : Abhay Joshi , Parthsarathi Jha , Ravisekhar Nair , Tanaya Sethi, Sahil Khanna, Param Tandon, Ketki Agrawal, Anam Ahmad
  • Background:

    On April 08, 2022, the Competition Commission of India (CCI), in exercise of the powers conferred on it under Section 36, 57 and 64 of the Competition Act, 2002 (Act), amended the Competition Commission of India (General) Regulations, 2009, (General Regulations) and has updated the Confidentiality Regime that is provided for under Regulation 35 of the General Regulations.

    Regulation 35 lays down the mechanism to deal with confidentiality requests that are made by parties during the course of proceedings before the CCI and the Office of the Director General (DG). It sets out the procedure and the parameters for seeking confidentiality over submissions that are made by parties.

    Key Changes:

    A quick snapshot of some key changes that have been introduced to Regulation 35 is provided below:

    a. Self-Certification of Confidentiality Claims: Parties claiming confidentiality over certain information will now have to submit an undertaking certifying that their confidentiality claims are in compliance with the General Regulations.

    b. Segregation of confidential information in the nature of personal information: All information in the nature of personal information such as call data records, e-mail dump, documents obtained through search/seizure etc. will now be marked as “confidential” and kept separately by the CCI.

    c. Setting up of Confidentiality Rings: If considered necessary, the CCI may set up a confidentiality ring comprising of authorized representatives of parties, who alone will have access to the confidential information in an ongoing matter. Following are the key aspects of the confidentiality ring –

    • Members of the confidentiality ring will have access to all confidential documents and material relied upon by the DG in the confidential version of the DG Report, including confidential information in the nature of personal information.
    • The CCI while setting up the confidentiality ring, may decide the extent to which confidential information may be made accessible and also the members to be included.
    • Access to confidential information shall be provided to members of the confidentiality ring on submission of an undertaking by such members that the information will not be shared outside of the ring and will be destroyed upon culmination of the proceedings.
    • The Informant shall ordinarily not be a part of the confidentiality ring unless the CCI considers their inclusion to be necessary.
    • The CCI may initiate penal action against members of the confidentiality ring for breach of the confidentiality obligations.

    ELP Comment:

    The introduction of confidentiality ring(s) by the CCI is in line with the practices followed by some of the more mature jurisdictions, like the European Union. While the CCI has been following this practice in the recent past, the formal inclusion of a confidentiality ring structure along with the requirement of providing an undertaking will offer additional layers of safeguards to protect the confidential (and personal) information of parties.  These changes introduce a more structured mechanism that will also be useful to the parties seeking access to the confidential case records, who can now approach the CCI in a more organized manner following the process to gain access to complete case records. The amendment reflects the CCI’s efforts to introduce a system that seeks to strike a balance between the interests of the parties seeking confidentiality over their information and the parties who seek access to complete case records to allow them to effectively present their case before the CCI.

    The detailed notification can be accessed here.

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    Disclaimer: The information provided in this update is intended for informational purposes only and does not constitute legal opinion or advice. Readers are requested to seek formal legal advice prior to acting upon any of the information provided herein. This update is not intended to address the circumstances of any particular individual or corporate body. There can be no assurance that the judicial/ quasi-judicial authorities may not take a position contrary to the views mentioned herein.