European Commission’s Observations On Access To Leniency Documents
07 March 2012
Pursuant to Article 15(3) of Regulation 1/2003, the European Commission (“Commission”), acting on its own initiative, may submit written observations ("amicus curiae" observations) to national courts where the coherent application of Article 101 or 102 of the Treaty on the Functioning of the European Union so requires.
On 3 November 2011, the Commission sent an amicus curiae observation to the UK High Court in the context of a damages action brought by National Grid Electricity Transmission plc. against a number of companies held liable by the Commission in January 2007 for their participation in the Gas Insulated Switchgear cartel.
In the June 2011 edition of our Newsletter, we reported on the Court of Justice of the European Union’s (“ECJ”) preliminary ruling on the discoverability of leniency applications in civil actions based on the breach of the competition rules (Case C-360/09 Pfleiderer AG v Bundeskartellamt). The Commission’s amicus curiae observations were made in response to the High Court's invitation to submit observations in light of that preliminary ruling about the possible inter partes disclosure of various documents, some of them containing information specifically prepared for the purpose of an application under the Commission's leniency programme.
The Pfleiderer judgment
In the Pfleiderer judgment, the ECJ held that it is for a national judge to determine the conditions under which access to leniency material can be granted to a person seeking to obtain damages based on a finding of infringement of the competition rules. This involves a delicate balancing act, which needs to ensure both the effectiveness of leniency programmes and of antitrust damages actions, both equally serving the objective of maintaining effective competition in the EU. In weighing up these interests, account must be taken of the fact that, whilst leniency documents may contain information that is necessary to obtain compensation, the disclosure of these documents could compromise the attractiveness and success of leniency programmes.
The Commission’s observations
The Commission considers that the general principles of EU law enunciated in Pfleiderer are applicable to both national and Commission investigations.
The Commission emphasises that the willingness of companies to provide comprehensive and candid information is crucial to the success of its leniency programme which is the most effective tool at its disposal for the detection of secret cartels. In its view, the court should therefore:
- assess whether, in the circumstances of the case, disclosure of leniency documents, or documents including material derived from leniency documents, would expose the leniency applicants to greater liability than those parties that did not cooperate with the Commission. The general perception by leniency applicants that this would happen remains an important concern for the Commission and augurs in favour of non-disclosure; and
- take into account whether the document in issue is at all relevant for the purpose of the claim, and whether there are other available sources of evidence that are equally effective for that purpose, but which do not give rise to concerns about the consequences of disclosure for the effective functioning of a leniency programme (i.e. the proportionality of disclosure).
Although confined to the present proceedings, the Commission’s observations re-affirm its general opposition to disclosure and provide useful guidance for parties involved in follow-on damages cases. However, as noted by the Commission, this area of law is far from settled and it may be expected that further references to the ECJ for preliminary rulings will be made seeking clarification of the ruling in Pfleiderer.
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