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's1 rights to compensation for losses
suffered as a result of the cartelists activities2, 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
