Right to Be Heard or Protection of the Confidential Information? Competing Guarantees of Procedural Fairness in the Proceedings Before the Competition Authority
Streszczenie
The concept of procedural fairness plays an important role in the enforcement
of competition law, which must not only be effective but also fair. Thus, legal
institutions should guarantee a proper level of protection of the values of procedural
fairness. This paper is dedicated to the possible conflict between the guarantees
of procedural fairness that find their expression in the right to be heard and in the
protection of confidential information.Both guarantees, the right to be heard on the one side, and the protection of
confidential information on the other, should be properly balanced. Unlike EU law,
Polish legislation and jurisprudence proves to be inefficient in this respect. Article
69 of the Competition Act fails to show clearly what the limits of the protection
of confidential information are in situations when the right to be heard of other
parties of antitrust proceedings is at stake. Business secrets are predominantly
protected over the right to be heard also in the jurisprudence of Polish courts.
By contrast, the Competition Act does not seem to properly protect confidential
information other than business secrets. Such situation poses a risk for the adequate
level of protection of procedural fairness in Polish antitrust enforcement. Moreover,
neither Polish legislation nor jurisprudence explains to companies what shall prevail
in the case of a concrete conflict between the protection of business secrets and
the right to be heard. An answer to this questions is needed seeing as proof of a
competition law infringement which should be accessible to the parties, can at the
same time constitute a business secret.
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