The 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.
In its amicus brief, the European Commission drew a distinction between voluntarily submitted oral corporate statements, which it considered should as a matter of EU law be protected from disclosure both when submitted under EU and national leniency regimes, and pre-existing documents submitted by leniency applicants, for which a balancing of public and private enforcement objectives was appropriate. This accords with the position under the 2006 Notice on immunity from fines and reduction of fines in cartel cases, where oral corporate statements are made available only to outside counsel to parties incriminated in the cartel on the basis that they do not electronically or mechanically copy the statements. In his opinion, the Advocate General drew a similar distinction on the basis that oral corporate statements are a product solely of leniency procedure, whereas pre-existing documents exist independently of the procedure and could, at least in theory, be discovered elsewhere.
Much of the interest in the decision stems from the fact that the CJEU did not draw such a distinction. It authorised national courts to weigh the public and private enforcement objectives for all leniency documents. In addition, whilst Pfleiderer involved a request for access to documents submitted to a national authority under a national leniency programme, the CJEU's ruling does not specifically limit itself only to documents submitted at national level and the way in which it is worded left open the question as to its application to EU leniency documents.
Austrian Cartel Court
The decision in Pfleiderer has prompted a flurry of further references to the CJEU by national courts seeking to clarify the compatibility of national rules governing third party access to the file in cartel proceedings with EU law. For example, in October 2011 the Austrian Cartel Court stayed proceedings in connection with a third party's application for access to the file in a printing chemicals cartel case.
As a matter of Austrian law, third parties may only obtain access to the file with the prior consent of all parties to the proceedings. This applies to all documents on the file, not just leniency documents. The stated objective of the provision is to promote disclosure of infringements of competition law by infringers and there is no scope for weighing the conflicting objectives of public and private enforcement as was mandated by the CJEU in Pfleiderer. In addition, the rules are less favourable than other Austrian rules governing prospective claimants' access to documents in connection with violations other than competition law violations. The Austrian Cartel Court has asked the CJEU whether the national rule is compatible with EU law. The reference was made in October 2011, and the average time period between reference and decision is 18 – 24 months, so we may not have a decision in this case until early next year.
UK High Court
In the UK, the High Court is struggling to apply the Pfleiderer decision in a damages action brought by National Grid against the companies found guilty by the European Commission of having been involved in the switchgear cartel (ABB, Siemens, Alstom and Areva). Proceedings were issued before the CJEU's decision in Pfleiderer. However, following the decision, National Grid amended the scope of its disclosure request to include documents that incorporated material contained in leniency documents submitted by the immunity applicant, ABB (documents such as the confidential version of the decision and replies to the statement of objections quoting from corporate statements).
At the invitation of the High Court, the Commission submitted its views. The Commission noted firstly, that the same principles and balancing exercise identified by the CJEU in Pfleiderer did in its view, apply by analogy to leniency documents submitted pursuant to an EU investigation. Secondly, in carrying out the weighing exercise, the Commission submitted that the High Court should have regard to whether disclosure would increase the leniency applicants' exposure to liability, compared to the liability of parties that did not co-operate; and whether disclosure is proportionate in the light of its possible interference with leniency programmes.
The High Court has not yet ruled on the specific requests in this case.
CDC Hydrogen Peroxide
In addition to accessing documents via disclosure as part of the process of litigation, prospective claimants and other third parties can also seek access to documents via Regulation 1049/2001, which provides for public access to documents held by the EU institutions.
CDC, which purchased cartel related damage claims from pulp and paper companies allegedly affected by the hydrogen peroxide cartel, requested under EU Regulation 1049/2001 access to the Commission's statement of contents of its file. The Commission refused because: (i) disclosure would undermine the protection of commercial interests of undertakings that took part in the cartel; and (ii) it would undermine the protection of the purpose of the Commission's investigation activities. These reflected exceptions from disclosure that are provided for in the Regulation.
CDC appealed to the General Court, which struck down the Commission's refusal. As regards the commercial interests of the undertakings involved in the cartel, the Court concluded that the statement of contents of the Commission's file did not include commercially sensitive information and their interest in avoiding damages claims cannot be regarded as a commercial interest that should be protected. As regards undermining the protection of the purpose of the Commission's investigation, it found that the decision to reject the request for access was made over two years after the cartel decision. Therefore, there was no possibility that the Commission's investigation would be undermined.
It is a struggle to understand the Commission's approach to the CDC case. It argued forcefully about the need to protect the future operation of its leniency programme when CDC had not requested access to documents submitted in connection with leniency. Nonetheless, Regulation 1049/2001 is an important tool for those wishing to access documents held by the EU institutions. As regards disclosure as part of the litigation process, Advocate General Mazak has suggested that EU legislation is needed to avoid a continuation of what he referred to as the "merry-go-round" of preliminary references from national courts and to prevent the emergence of divergent case law from national courts in each of the 27 Member States. A disparity in the application of rules on access to documents is likely to lead to uneven enforcement of the EU rules, not least because it will lead to forum shopping by leniency applicants.
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