It Is Always Darkest Before The Dawn: Litigating Access To Cartel Leniency Documents In The EU

Once confined to US class actions, litigation by plaintiffs seeking to gain access to leniency documents in order to bolster their cartel damages claims has spread to European courts. These efforts have enjoyed a measure of success, both before national judges and the EU courts in Luxembourg. However, recent developments indicate that this success may be short-lived. Ultimately, legislation is required to ensure legal certainty and a level-playing field throughout the EU, and to safeguard the EU and national leniency programmes as a vital public enforcement tool against cartels; one without which plaintiffs could not bring any cartel damages claims in the first place. The recent Commission proposal for a directive approximating Member States' liability regimes for breach of antitrust law could restore legal certainty on this crucial topic.