Reform of Regulation 1/2003 and Access to the File: Is the DMA/DSA Approach Helpful?

In this piece, author Stijn Huijts discusses the burdensome yet essential process of access to file following the issuance of a Statement of Objections (SO) in EU competition law proceedings. This right enables companies under investigation to review all relevant evidence—both incriminating and exculpatory—collected and considered by the European Commission (EC) in its preliminary findings. Ensuring access to such evidence is critical to upholding the fairness of proceedings, especially given the substantial fines that can result. However, the EC is reportedly considering significant procedural reforms as part of its review of Regulation 1/2003 and its implementing Regulation 773/2004. These reforms may take cues from the access to file procedures in the Digital Markets Act (DMA) and Digital Services Act (DSA), raising concerns about potential infringements on due process protections in competition cases.

Huijts outlines the historical development of access to file rights, which were not originally included in EU competition law regulations such as Regulation 17/62 or its implementing rules. Instead, access emerged through judicial interpretation by the Court of First Instance (now the General Court), which emphasized the importance of “equality of arms” and the fundamental right to be heard (“audi alteram partem”). Landmark cases such as Hercules and Solvay I & II established that undertakings must be granted access to all relevant material, except for business secrets and internal EC documents. These principles were further reinforced by the Commission’s 1997 Notice on Internal Rules for Access to the File and ultimately codified in Regulation 1/2003, solidifying access to file as a legislative right.

Currently, Article 15 of Regulation 773/2004 governs access to file after an SO is issued. Article 15(1) obligates the EC to provide access upon request, while Article 15(2) excludes business secrets, confidential information, and internal documents from this right. Article 16 outlines how confidentiality is assessed and protected. The process is often arduous: case teams must work with parties to create non-confidential versions (NCVs) of documents, leading to extensive back-and-forth negotiations. These NCVs are made available in the accessible case file, and in some cases, confidential data is shared with advisors in secure settings like virtual data rooms. Despite these mechanisms, the process remains complex and time-consuming, raising concerns about further complications if DMA/DSA-style procedures were adopted for competition law cases…

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