The European Court of Justice (ECJ) recently ruled that documents relating to a leniency programme may be disclosed to persons seeking damages in civil antitrust actions.1 It is up to the national courts to determine on a case-by-case basis, and in accordance with national law, whether the interests of disclosure of information outweigh the interests of protection of the information voluntarily provided by the leniency applicant. Considering that non-disclosure is the key to an effective leniency programme, this ruling could deter companies from applying for leniency. Fewer leniency applications could mean that fewer cartels are uncovered which, in turn, could lead to fewer civil damages claims. National courts thus have a task cut out for them in performing a careful balancing act. Dutch courts in particular will need to prepare themselves, as the Netherlands currently appears to be an attractive venue for making international cartel claims.2
In its preliminary ruling, the ECJ acknowledged that leniency programmes are useful tools to uncover cartels and may therefore serve the objective of effective enforcement of the EU competition rules. The effectiveness of leniency programmes could be compromised if documents relating to a leniency procedure are disclosed to persons wishing to bring an action for damages. However, it is settled case law that any individual has the right to claim damages for losses incurred through conduct which is liable to restrict or distort competition. The existence of this right significantly contributes to the maintenance of effective competition by its discouraging effect on cartels. The ECJ finds that the tension between public and private enforcement of the EU competition rules should be resolved by carrying out a balancing exercise according to national law, since there are no common EU rules on leniency or on the right of access to documents relating to a leniency procedure voluntarily submitted to a national competition authority pursuant to a national leniency programme.
It is still unclear how this will work in practice. A UK judge, in search of more clarity regarding disclosure, is already considering a new reference for a preliminary ruling to the ECJ in a pending damage claim.3 Dutch courts who have to rule on pending requests for disclosure may feel tempted to adopt the approach outlined by advocate general Mazák, who suggested distinguishing between self -incriminating statements voluntarily provided by leniency applicants and other pre-existing documents submitted in the course of a leniency procedure.4 According to the advocate general, access to self-incriminating statements could reduce the attractiveness of leniency programmes and thus undermine the effective public enforcement of the EU competition rules. Civil litigants should in his view, however, have access to pre-existing documents submitted by a leniency applicant, since these documents exist independently of the leniency procedure and could, at least in theory, be discovered elsewhere.
It remains to be seen which approach the EU courts will take when handling disputes on requests for the disclosure of documents relating to the European Commission's leniency procedure. Plaintiffs in the EU, as well as those in US civil damage claims involving worldwide cartels increasingly request disclosure of documents submitted to the European Commission in its leniency procedure.5 Such disclosure claims need to be assessed on the basis of the European Commission's Leniency Notice6 and the EU's Transparency Regulation7. A number of cases are pending which may shed light on how to deal with disclosure requests relating to the Commission's leniency procedure.8
In the meantime, the recommendation by the European Ombudsman in response to a complaint that the European Commission refused access to documents relevant to the complainant's civil damage action may prove useful.9 The European Ombudsman recommended the Commission to conduct a balancing exercise in its assessment of requests for access to documents by indicating, when replying to a request for access (i) that, under Article 15 of Regulation 1/200310, national courts are empowered to request documents from the Commission for the purposes of applying the competition rules, and (ii) whether the documents in question might be relevant for damages actions before national courts.
Footnotes
1. Case C-360/09, Pfleiderer, 14 June 2011.
2. See for instance the damage claims initiated in the Netherlands in regard of the air cargo cartel, Mlex – Case file on Cartel Airfreight and the recent damages action filed by Cartel Damages Claims before the Dutch Court, Mlex – Case file on Cartel Sodium Chlorate.
3. See English court to consult EC on disclosure in switchgear cartel damage claim; mulls ECJ reference by Mlex, 15 June 2011.
4. Opinion in case C-360/09, Pfleiderer, 16 December 2010. According to advocate general Mazák, the term "pre-existing documents" consists of other evidence relating to the alleged cartel in possession of the applicant or available to it at the time of the submission, including in particular any evidence contemporaneous to the infringement and refers to point 9(b) of the European Commission's Leniency Notice, OJ 2006, C298/17.
5. Cartel Damage Claims AG (CDC) - a Brussels-based group of companies specializing in the purchase, the preparation and the enforcement of cartel damage claims - is currently in a dispute with the European Commission on gaining access to an index to European Commission cartel file. See EC protects bleaching cartel file as CDC seeks access to index by Mlex, 14 June 2011.
6. Commission Notice on Immunity from fines and reduction of fines in cartel cases, OJ 2006, C298/17.
7. Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents, OJ 2001, L145/43.
8. See case T-380/08, The Netherlands v European Commission, action brought on 9 September 2008, OJ 2008, C285/51; case T-344/08, EnBW Energie Baden-Württemberg v Commission, action brought on 25 August 2008, OJ 2008, C272/42 and case T-437/08, CDC Hydrogene Peroxide v Commission, action brought on 6 October 2008, OJ 2008, C313/48.
9. Decision of the European Ombudsman closing his inquiry into complaint 3699/2006/ELB against the European Commission, 6 April 2010.
10. Regulation 1/2003 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (now: Articles 101 and 102 TFEU), OJ 2003, L1/1. Article 15(1) provides: "In proceedings for the application of Article 81 or Article 82 of the Treaty, courts of the Member States may ask the Commission to transmit to them information in its possession or its opinion on questions concerning the application of the Community competition rules."
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