We publish below a brief excerpt from Assonime's Observations on the application of civic access and transparency regulations to publicly-owned companies. The full text of the note is attached in PDF.
Anac has recently submitted to public consultation a draft of guidelines containing operational indications on the exclusions and limits to civic access to publicly owned companies. Our observations start from the observation that the discipline of the decree on transparency applies, insofar as it is compatible, also to subjects that are companies. The application of the discipline to entities other than public administrations requires some reflections on the differences that exist between a company and a public administration. The decree itself provides that the discipline on transparency to the subjects referred to in article 2-bis, paragraph 2, letter b, and paragraph 3, "insofar as compatible".
First of all, it should be kept in mind that companies operate, unlike public administrations, in markets where they are in competition with other companies. The competitiveness of a company, and therefore its value, depends on the ideas that are developed and developed within the organization. If information relating to these aspects were freely accessible to competitors, the value of the company would be substantially affected. This would result in a fundamental distortion of the functioning of the market.
Secondly, it should be noted that the decree on transparency does not apply to all companies, but only to those with public participation. It is necessary to ensure, through an appropriate interpretation of the rules, that state-owned enterprises do not find themselves in a situation of artificial and unjustified competitive disadvantage compared to competitors in the private sector and publicly-owned enterprises of other States.
Thirdly, there is a further consideration to take into account in interpreting the legislative provision. As the antitrust authorities have highlighted for some time, companies can exchange information to engage in collusive conduct that restricts competition to the detriment of the public and private purchasers of their services. Civic access could easily be used as a tool to carry out an exchange of information between competitors, risking creating problems from the point of view of compliance with antitrust rules.
Attachments: Note by Assonime
