Antitrust Alert: Documents Provided In Antitrust Leniency Applications Not Exempt From Disclosure Demands In EU - Part 2

A recent ruling from the EU General Court ("General Court") in EnBW Energie Baden-Württemberg AG v Commission confirms that leniency documents produced under the European Commission's ("Commission") leniency program are not exempt from disclosure in civil actions in the EU. Earlier this year, the European Court of Justice ("ECJ") had ruled in Pfleiderer that leniency documents produced to National Competition Authorities could be disclosed to cartel victims in civil actions for restitution.

These developments may be welcome news for the increasing number of claimants across the EU seeking access to documents filed by leniency applicants, but less welcome to defendants and prospective leniency applicants, who may feel more reluctant to blow the whistle if that puts them at risk of their incriminating evidence becoming available to prospective claimants.