In acquisitions or mergers where the turnover of the parties involved is such as to trigger the obligation to notify the concentration to the Competition Council, according to Competition Law 21/1996, there is a risk that sensitive information relating to the two (or more) businesses involved in the concentration may be exchanged between the parties to the transaction. Most of the time, such exchanges of information take place almost naturally, without the persons involved even being aware that such conduct is likely to constitute a breach of competition law, with the consequence that the competition authorities may impose heavy penalties and, potentially, with a detrimental impact on the transaction.
Avoiding this risk of course starts with awareness of it, and lawyers (in-house or external) or consultants involved in the transaction should be able to point it out to the business teams. The next step is to take concrete steps to avoid unauthorised sharing of sensitive information. One such measure - very effective, but also consistent with the need for cooperation between parties in the context of a transaction - is the establishment of a clean team, made up of individuals from each of the parties to the transaction and operating under a clean team agreement. The clean team activity effectively means that the members of this team receive confidential information from the other party to the transaction, but - being bound by strict confidentiality obligations - ensure that this information is filtered and aggregated so that it is useful to the transaction, without the people involved in the business getting to know it directly.
The "clean team" contract is concluded between the companies that are parties (or potential parties) to the intended transaction and is very similar to a confidentiality agreement. The main feature is probably that the clean team agreement specifies the list of names of individuals to be part of the clean team, with the provision that only they will receive sensitive information from their superiors/clients (the latter - if the clean team includes external consultants hired by the party) and that only they will use it for the agreed purposes.