Cartel Documents: the war goes on
Until this past week, one might have thought that the Commission was in retreat – pursued by private damages litigants seeking access to its internal files and with its defences eroded by preliminary rulings in national courts, granting some access to leniency materials.
In the CJEU judgment in Pfleiderer, the Court ruled that in the absence of legislation at EU level, it was for the national courts to decide on a case-by-case basis what level of file access should be granted to private damages litigants. This was to be done by balancing the relevant interests between the litigant's  rights to compensation for losses suffered as a result of the cartelists activities , on the one hand, with the public policy interests of fostering an effective leniency programme, on the other. The tension has always been clear since disclosure of leniency materials would be valuable sources of evidence for private claimants, but their disclosure might undermine the effectiveness of the EU's leniency programme. This requirement of a balancing act by national courts meant that the CJEU was not affording absolute protection to leniency materials. But it failed to give any guidelines as to how a national court should conduct its balancing evaluation.
In a German national case, the court refused access to any leniency material . In the UK in the National Grid  case, the High Court has adopted a detailed balancing approach to weigh for example any increased liability exposure to leniency applicants (compared to non-leniency defendants), whether the information sought can be obtained from other sources and applying a proportionality test to access which is being sought.
In response to this the Commission, which recognises the dual importance of protecting and nurturing the leniency programme and also fostering a climate conducive to victim compensation, has introduced a draft directive on competition law damages. Included in the draft is a provision (Article 6) which seeks to embed absolute protection from disclosure all leniency corporate statements and also settlement submissions. The draft directive is currently under negotiation between the Commission, the Parliament and the Council and the outcome is uncertain, but the principle being pressed by the Commission on Article 6 is not yet accepted in the negotiations.
Then, this past week, the Commission won a significant victory before the CJEU over access to cartel documents in the switchgear case. German energy utility EnBW was considering pursuing private damages claims against a number of engineering companies and had sought to use public access regulations to force disclosure of documents held in the Commission's case file. The lower court had ruled in 2012 that specific individual examinations needed to be carried of each document, but this was rejected by the CJEU which held that the Commission could use a general presumption that cartel evidence should not be disclosed and did not have to look at each document in isolation. The Commission is entitled to presume that 'disclosure will undermine the protection of the commercial interests of the parties involved'. Importantly, it held that the interests of the potential damages claimant were not an overriding public interest capable of forcing disclosure  .
 C-360/09  All E.R. (EC) 979 ECJ
 Recognised, e.g., in Courage Ltd v. Crehan (c-453/99)  E.C.R. I-6297
 Amtsgericht Bonn, Pfleiderer II Court Order 18 January 2012 – 51 Gs 53/09
 National Grid Electricity Transmission Plc v. ABB Ltd  EWHC 869 (Ch)
 Case 365/12P – Commission v Enbw Energie Baden-Wurttenberg