Right to be heard or protection of the confidential information? competing guarantees of procedural fairness in the proceedings before the competition authority

Abstract

The concept of procedural fairness plays an important role in the enforcement
\nof competition law, which must not only be effective but also fair. Thus, legal
\ninstitutions should guarantee a proper level of protection of the values of procedural
\nfairness. This paper is dedicated to the possible conflict between the guarantees
\nof procedural fairness that find their expression in the right to be heard and in the
\nprotection of confidential information.Both guarantees, the right to be heard on the one side, and the protection of
\nconfidential information on the other, should be properly balanced. Unlike EU law,
\nPolish legislation and jurisprudence proves to be inefficient in this respect. Article
\n69 of the Competition Act fails to show clearly what the limits of the protection
\nof confidential information are in situations when the right to be heard of other
\nparties of antitrust proceedings is at stake. Business secrets are predominantly
\nprotected over the right to be heard also in the jurisprudence of Polish courts.
\nBy contrast, the Competition Act does not seem to properly protect confidential
\ninformation other than business secrets. Such situation poses a risk for the adequate
\nlevel of protection of procedural fairness in Polish antitrust enforcement. Moreover,
\nneither Polish legislation nor jurisprudence explains to companies what shall prevail
\nin the case of a concrete conflict between the protection of business secrets and
\nthe right to be heard. An answer to this questions is needed seeing as proof of a
\ncompetition law infringement which should be accessible to the parties, can at the
\nsame time constitute a business secret.