Competition Commission of South Africa v Unilever PLC and Others

The Competition Commission investigated a large merger involving Unilever PLC and its subsidiaries and recommended approval subject to divestiture conditions. In its recommendation to the Competition Tribunal, the Commission blacked out portions claimed to be confidential. The merging parties requested access to the full record, including allegedly confidential information, to assess and potentially challenge the confidentiality claims under section 45 of the Competition Act 89 of 1998. The Commission refused. The Tribunal ordered disclosure of the full record to the parties’ legal advisers under confidentiality undertakings. The Commission appealed that order to the Competition Appeal Court.

The appeal against the Tribunal’s order was upheld to the extent that the original order was set aside and replaced. The Commission was ordered to give respondents’ legal representatives restricted, non-reproducible access to the full merger record at the Commission’s offices, subject to confidentiality undertakings. Costs were awarded against the Commission, including the costs of two counsel.

The case is significant for clarifying how confidentiality claims in merger proceedings must be balanced against procedural fairness. It establishes that meaningful exercise of rights under section 45 requires limited disclosure, shaping Competition Tribunal and Commission practice on access to confidential information.