German Court Denies Third-Party Access To Leniency Applications In Court Proceedings

In a judgment of 22 August 2012, the Higher Regional Court of Düsseldorf (“the Court”), referring to the ECJ’s Pfleiderer judgment (see VBB on Competition Law, Volume 2011, No. 6, available at www.vbb.com), clarified that third-party access to leniency applications of cartel participants may be denied in court proceedings.

In 2009, the German Federal Cartel Office (“FCO”) had imposed fines on three coffee roasters for horizontal price fixing (see VBB on Competition Law, Volume 2010, No. 1, available at www.vbb.com). The FCO’s investigation had been initiated by a leniency application of one of the cartelists and additional leniency applications were submitted in the course of the investigation. Eventually, two of the companies involved in the cartel and several individuals who had been fined appealed the FCO’s decisions before the Court. The FCO therefore provided the Court with all its files relating to the proceedings concerned. With a view to preparing a civil action for