Priorities: Cartel victims or leniency applicants?

Victims of cartels can bring actions for damages before a national court. They will usually seek to obtain relevant information in order to substantiate their claim

Victims of cartels can bring actions for damages before a national court. They will usually seek to obtain relevant information in order to substantiate their claim. As a result, battles are being fought before various national Courts for disclosure of documents relating to particular cartels. 

There are primarily three avenues by which information held by the European Commission (the Commission) can be made available.  Firstly, the Commission is obliged to publish non-confidential versions of their infringement decisions. This can assist claimants in follow-on damages actions to prove the existence of the competition law infringement. Secondly, access is granted to the parties who receive the Commission's charge sheet (i.e. the statement of objections) so each accused company can view the evidence the Commission is relying on and to ensure a defendant's rights of defence are adequately protected. Thirdly, access can be sought and granted under Regulation 1049/2001 (the “Transparency Regulation”). 

The European Courts’ latest rulings, in Netherlands v Commission and Commission v EnBW Energie, considered access to documents under the Transparency Regulation.  In Netherlands, the General Court held that the disclosure of information collected by the Commission could dissuade potential applicants from co-operating under the Commission's leniency programme. In EnBW Energie, the Court of Justice ruled that the Commission was entitled to presume that disclosure of documents would undermine the protection of the commercial interests of the companies involved and the protection of the purpose of investigations: Round One to the leniency applicants.

Given the recent case law, a pertinent question is whether claimants’ interests can ever be reconciled with those of leniency applicants.  One of the aims of the proposed Directive on competition law damages actions is to set out a framework to manage such a process. For example, the proposed Directive sets out that leniency statements and settlement submissions are afforded absolute protection from disclosure. Watch this space to see the impact that the Directive will have on this growing area of complex competition litigation.

If you would like to discuss these issues, please do not hesitate to contact us.