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Presidium of the FAS Russia clarified the procedure of granting access to trade secrets information during case investigation of violation of antimonopoly legislation


 
Presidium of the FAS Russia in its Clarification dated 21.02.2018 No. 13 «On trade secrets information in the process of investigation of the case on violation of antimonopoly legislation, verification for abidance of antimonopoly legislation, state control for economic concentration» (“Clarification”) notes that such information for which information owner doesn’t establish commercial secrecy regime according to Commercial secret law, isn’t protected by law.
 
Further Presidium of the FAS emphasizes that the list of information that cannot be a trade secret is not exhaustively restricted by Article 5 of Commercial secret law. For example, this list also includes:
  • information that is contained in claims, objections, clarifications and other materials presented in written or oral form at the initiative of the person who participates in cases of violation of antimonopoly legislation;
  • data of the analytical report on the extent of market share of participants in the commodity market, goods included in the product boundaries, interchangeable goods, as well as product characteristics that exclude interchangeability;
  • impersonal consumer survey results about product and / or geographical boundaries of the market, other questioning or asking for opinions on product properties and / or competition on the product market.
This information is not a trade secret because it is a result of processing collected information and probabilistic assessment of competitive state in the relevant product market by the antimonopoly authority, does not belong to any certain person or represents opinion of consumers.
 
It should be noted, that in occasions when FAS Russia identifies information in respect of which the regime of commercial secret is established by the owner of information and this information according the law shouldn’t be a trade secret, then this information will be considered by the antimonopoly authority as not containing a trade secret.
 
If the owner of information files it to FAS and wants to extend the force of commercial secret regime to this information, he must comply with the following requirements:
  • mark documents as «Commercial secret» and indicate owner of information (for legal entities - full name and location, for individual entrepreneur – full name of citizen and his residence);
  • determine the form of provision information for third parties in the way, excluding violation of protected interests regarding the possible loss of commercial value of this information when it’s handed over to other persons (for example, providing information in an impersonal or generalized manner).
Failure to comply with the abovementioned requirements will indicate that the owner of the information does not take the minimum necessary measures to protect it and releases the antimonopoly authority from fulfillment of duty to comply with trade secret regime.
 
In addition, an important aspect of the Clarification is an indication of power of the antimonopoly authority to request evidence of taking measures to protect the confidentiality of information constituting a commercial secret, by a person, who provided the information. Such power extends to cases when the antimonopoly authority has doubts that the information provided with the stamp "Commercial secret" on the documents and electronic media really constitutes a trade secret.
In any event, the request of the antimonopoly authority to legal entity to provide necessary information should indicate the procedural reason for demanding information, the normative basis for demanding information and the condition of the Competition Protection law, which, in the opinion of the antimonopoly authority, could be violated by a legal entity.
 
Refusal of a person to provide information on a motivated request of the antimonopoly authority if it constitutes a trade secret, in practice is unequivocally regarded as an offense provided for by part 5 of Article 19.8 of the Code of on Administrative Offenses.
 
Regarding information, constituting trade secret, the FAS Russia performs the following protective measures to ensure its confidentiality:
  • non-provision by the antimonopoly authority of the materials contained in the case on violation of the antimonopoly legislation to persons, who are not involved in the established procedure to participate in the case of violation of the antimonopoly legislation;
  • investigation of the case on violation of the antimonopoly legislation in a closed session in order to protect trade secrets, including when the petition about necessity for a closed session of the participating person is satisfied;
  • receipt by the persons participating in the case of written consent from the person who established the regime of commercial secrets regarding the provided information, for acquaintance with the case materials that contain commercial secrets;
  • submitting a separate motivated request for information constituting a trade secret, in case of demanding the necessary information by the antimonopoly authority;
  • description of the relevant circumstances and evidence by the antimonopoly authority without including information directly constituting a commercial secret in preparing opinions on the circumstances of the case and decisions;
  • issuance by the antimonopoly authority of a copy of the relevant act with the exclusion of information constituting a trade secret, to persons who have not received consent to become acquainted with the information from its owner.
Thus, this Clarification can be regarded as a handbook for owners of commercial secret information. It navigates them through issues of ensuring confidentiality of information constituting commercial secret while cooperating with antimonopoly authority within the case on violation of antimonopoly legislation.
 


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