The Court of Justice of the European Union ('CJ') has handed down a key judgment in relation to third party access to leniency documents following a reference for a preliminary ruling from the Bonn Local Court. In essence, the CJ has ruled that it is for national courts to determine, on the basis of national law, whether access to information provided as part of a leniency application should be permitted or refused.
Pfleiderer AG, a purchaser of decor paper, had sought full access to the German competition authority's file in relation to a decor paper cartel in order to prepare for a civil damages action. This included a request for documents which had been voluntarily submitted under a leniency application. The Bundeskartellamt denied full access resulting in a challenge by Pfleiderer in the local courts. The local court stayed the application pending a preliminary ruling from the CJ.
The CJ has now held that the provisions of EU law in relation to cartels should not be interpreted as precluding a private litigant from being granted access to leniency documents. It is, however, for the courts and tribunals of member states to decide, on the basis of national law, the conditions under which access to information provided as part of a leniency application can be permitted or refused. In reaching this conclusion, the interests protected by EU law must be balanced against each other on a case by case basis.
The CJ observed that leniency programmes and the ability of private litigants to sue for damages are both important tools for the enforcement of EU competition law. On the one hand, any individual has the right to claim damages for loss caused by anti-competitive conduct. On the other hand, the attractiveness (and the effectiveness) of a competition authority's leniency programme could be materially compromised if full access to leniency documents were to be granted. In such cases, leniency applicants may find themselves in a less favourable position as regards civil damages than the other cartel members who have not applied for leniency.
It is notable that the CJ has not taken this opportunity to provide any further guidance or clarification on how national courts should deal with access requests in what is a very live issue. Indeed, the English courts are already grappling with the issue. The judge in one particular case where leniency had been sought from the European Commission has indicated that he would want to give the European Commission the opportunity to submit observations before reaching a decision on access. It remains to be seen whether this approach will be adopted more widely.
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