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German court could decide on access to antitrust leniency files by injured party

The European Court of Justice has held that it is up to the national courts to determine whether and how to provide access to files generated under leniency programmes by injured parties seeking damages for violation of competition law.

Pfleiderer AG v Bundeskartellamt (Case C-360/09)

The judgment in the Pfleiderer case was issued by the European Court of Justice in response to a reference for a preliminary ruling from a court in Bonn. In 2008, the Bundeskartellamt (the German competition authority) imposed fines totalling EUR 62 million on participants in a cartel on the decor paper market. After the competition proceeding was completed, Pfleiderer, a manufacturer which had purchased decor paper from the cartel members, applied to the Bundeskartellamt for full access to the file in the competition proceeding, including documents submitted by the cartel members under the leniency programme (under which the authority could waive or reduce fines on cartel members who came forward voluntarily with information about the unlawful practices and provided evidence of the cartel). The evidence submitted under the leniency programme would be crucial for third parties injured by the cartel if they sought damages for losses caused by the cartel.

The competition authority denied access to most of the documents. Pfleiderer sought review from a court in Bonn, which was inclined to order access to the documents but sought a preliminary ruling from the ECJ because of the issues of European law at stake.

The ECJ held that EU law did not preclude access to such documents. “It is, however, for the courts and tribunals of the Member States, on the basis of their national law, to determine the conditions under which such access must be permitted or refused by weighing the interests protected by European Union law” (judgment dated 14 June 2011). The ECJ did not provide specific guidelines for ruling on requests for access to leniency applications, but pointed out that the national courts must balance the interest in assuring the effectiveness of leniency programmes against the right of an injured party to seek compensation for loss suffered as a result of anti-competitive practices.

In a judgment issued on 18 January 2012, the court in Bonn was the first to apply the holding set forth in Pfleiderer. The court relied on German criminal procedure law, under which an aggrieved party may obtain access to the files in a competition proceeding if it adequately demonstrates its interest in obtaining access. The competition authority may refuse to provide access to the files, however, if disclosure of the documents could be detrimental to a pending or future proceeding.

On these grounds, the court in Bonn held that documents filed under the leniency programme could not be disclosed to third parties. The court stressed that such disclosure would be inconsistent with the principles of self-incrimination and would distort the leniency programme—the most effective tool for uncovering cartels. Access to the leniency programme files would also have a negative impact on the ability to obtain damages for anti-competitive behaviour because it would reduce the detection of cartels. In the court’s view, such a ruling would not prejudice the rights of third parties, who may obtain access to the other files in the proceeding, including documents gathered in the course of a dawn raid.

The German court took a firm position on protecting the effectiveness of the Bundeskartellamt’s leniency programme. The ruling in favour of cartel members who had voluntarily come forward should encourage exposure of cartels, but makes it more difficult for third parties injured by a cartel to prove their case when seeking damages from cartel members.

Karolina Sereja, Competition Law practice, Wardyński & Partners