Access To Leniency Documents In The Context Of Civil Damage Actions – An Overview Of Pfleiderer And Its Aftermath

On 14 June 2011 the European Court of Justice ("ECJ") gave its ruling in the Pfleiderer case (C-360/09). Pfleiderer concerned a so-called preliminary question referred to the ECJ by the Amstgericht Bonn in which the latter was seeking clarification on whether EU law prohibits the disclosure of leniency applications to third parties which have suffered damages resulting from a breach of competition law. The Amstgericht Bonn was adjudicating a matter in which Pfleiderer AG, a customer of manufacturers of décor paper which the German Competition Authority (Bundeskartellamt, "BKA") had in 2008 fined EUR 62 million for participation in a cartel, was seeking access to the BKA's file for the purposes of submitting a civil action for damages. The BKA granted access to certain documents but refused to grant access to documents relating to leniency applications made in the case. Pfleiderer AG appealed to the Amstgericht Bonn. In response to the Amstgericht's preliminary question,