Transcripts Of Oral Leniency Statements Should Be Disclosed

Oral leniency statements do not enjoy the intended protection against disclosure. The highest Dutch administrative appeal court recently ruled that copies of transcripts of oral statements by leniency applicants should be provided to other cartel participants in aid of their defence in appeal proceedings. The Dutch Authority for Consumers and Markets unsuccessfully argued that disclosure would harm the effectiveness of its leniency programme.

In appeal proceedings against a cartel decision, the Dutch Authority for Consumers and Markets, ACM, had requested that copies of the transcripts of the oral leniency statements be disclosed only to the Trade and Industry Appeals Tribunal, not to the cartel participants appealing the ACM's decision. Counsel for these cartel participants had earlier obtained access to the transcripts at the ACM offices (without being allowed to make copies). This is also common practice in cartel proceedings filed with the European Commission.