The Leniency Dilemma Revisited

Leniency applicant Evonik recently managed to successfully block the publication of a more detailed version of an earlier cartel decision. Time will tell whether this success is a Pyrrhic victory. The European Court of Justice ruled that before a more detailed version can be published, the hearing officer should first take into account all of the leniency applicants' objections to determine whether particular information may be disclosed. However, the ECJ also found that the Commission is not prevented from supplementing the extended cartel decision with information provided by a leniency applicant. This ruling underlines that applying for leniency may have the drawback of producing greater exposure to damage claims. Potential leniency applicants should therefore carefully consider whether a possible leniency grant will outweigh the risk of further detailed disclosure in a future non-confidential cartel decision, with a potentially larger group of damages claimants as a