The Slippery Slope of Data Rooms

Antitrust sanctioning and merger proceedings derive from an effort to compile documentation and information by the competition authority from several third parties. These documents can be both sensitive and confidential when disclosed to the competition authority to facilitate its punitive exercise of power. In the EU and the UK, confidentiality concerns have triggered the use of confidentiality rings and data rooms in the face of exceptional circumstances to crystallise the concerned undertaking's right to access the agency's file in full.

The European Commission's approach to data rooms is anything but exceptional. In both DMA and DSA cases, the enforcer's policy choice is to systematically give access to regulatory targets to data rooms to access part of the case file. Aside from the digital aspect of these proceedings, nothing sets them apart from regular antitrust procedures. Thus, the paper argues that an overreliance on data rooms imperils the regulatory target's rights to be heard and to access the file by doing away with a case-by-case analysis.