The Court of Justice of the EU does not afford the leniency file in cartel cases absolute protection. This means cartel victims that seek to claim damages (follow on claims) stand a better chance of retrieving information from the leniency file, in order to substantiate their claims.
In the recent Donau Chemie judgment, the highest European court ruled that a national law, which made it de facto impossible for cartel victims to gain access to the leniency file, was impermissible.
The Court of Justice of the EU does not follow the suggestions made by AG Jääskinen, who argued that the legal rights of leniency applicants (absolute protection) should supersede those of cartel victims seeking to obtain damages (follow on claims). The Court of Justice of the EU takes a different approach.
In the absence of full harmonisation, right now, national courts have to apply national access to file rules, in the context of an information request. The Netherlands jurisdiction, to give but one example, relies heavily on article 843a Code of Civil Procedure in this respect.
The Court of Justice of the EU recognises that leniency, being a part of public law enforcement, can play an effective role in taking down cartels. However, it also recognises the second route of private law enforcement. That second route would be impermissibly obstructed, if national laws do not offer cartel victims any hope whatsoever of obtaining access to a leniency file.
With reference to her previous rulings on the relationship between public law and private law enforcement, including the Pfleiderer judgment (r.o. 30-31), the Court of Justice of the EU holds absolute protection is impermissible – even for cartel participants who also happen to have been awarded leniency. Luxembourg considers in particular (r.o. 46):
In particular, as regards the public interest of having effective leniency programmes referred to by the Austrian Government in the present case, it should be observed that, given the importance of actions for damages brought before national courts in ensuring the maintenance of effective competition in the European Union (see Courage and Crehan, paragraph 27), the argument that there is a risk that access to evidence contained in a file in competition proceedings which is necessary as a basis for those actions may undermine the effectiveness of a leniency programme in which those documents were disclosed to the competent competition authority cannot justify a refusal to grant access to that evidence.
Unfortunately, the Court of Justice of the EU does not specify the outer boundaries of its ruling in great detail. The same goes for the relevant factors national courts are to take into account, when balancing the arguments pro and con (r.o. 48):
It is only if there is a risk that a given document may actually undermine the public interest relating to the effectiveness of the national leniency programme that non-disclosure of that document may be justified.
In the meantime, the European Commission has put forward legislative proposals that would regulate the relationship between public law and private law enforcement to some degree. These proposals, if turned into law, will become significant for Dutch legal practice. In regard of such new developments, BANNING Advocaten is glad to be able to keep you up to speed, here and elsewhere.