European Courts have been seized of a number of important cases on the balance between protection of leniency programmes on the one hand, and the facilitation of damages claims on the other over the last year. A number of the decisions remain pending. However, understanding when and how documents, including leniency documents, submitted in confidence to an EU antitrust authority may be handed over to prospective claimants, is vital both to companies that may have engaged in wrongdoing and those that may have suffered loss as a consequence of that wrongdoing.
The most widely discussed case is the Pfleiderer case. It was a reference to the Court of Justice of the European Union (CJEU) from the Amstgericht (District Court) in Bonn. Pfleiderer is a supplier of wood and laminate flooring and sought damages from suppliers of décor paper that had been found guilty, under German antitrust rules, of having engaged in a price fixing cartel. Under German law, outside Counsel acting on behalf of claimants have the right to inspect the German antitrust authority's file and even take it to their office, provided the purpose of the investigation is not compromised. Pfleiderer's Counsel sought access to the authority's entire file, including leniency materials. The authority refused and Pfleiderer appealed to the Amstgericht which referred the following question to the CJEU: Does EU law preclude parties adversely affected by a cartel being given access to leniency documents voluntarily submitted to a national competition authority pursuant to a national leniency programme?
The CJEU's decision identified the competing objectives of ensuring that cartelists are not deterred from submitting evidence under leniency programmes (facilitating public enforcement of the competition rules) and enabling damages claims, which strengthen the working of the competition rules, to be brought (facilitating private enforcement of the competition rules). However, it did not provide guidance on how national courts should weigh these competing objectives. It stated only that national courts should conduct the weighing exercise on a case-by-case basis, according to national law, and taking account of all relevant factors.
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