The protection of information delivered under “leniency” after the “Pfleiderer” judgment

A company that has been affected by the operation of a cartel can seek compensation from damages suffered with the national courts. However, the secretive nature of cartels and their (often) sophisticated means of operation render it difficult to invoke and prove all relevant aspects of the case.

Whenever such damage claim is presented subsequent to a sanctioning decision of a competition authority (“follow-on claims”) the claimant has a particular interest in having as much information as possible on the previously-sanctioned infringement, in particular by accessing the authority’s file. Frequently however, those files contain self-incriminatory information delivered by the cartel members to the referred authority under a leniency program (which allows them to benefit from full or partial exemption from fines provided they admit participation in the infringement and fully cooperate with the investigating authority, for example, by offering evidence or relevant information on the cartel). In such cases the interest of the injured part to access as much information as possible to substantiate its request for redress against cartel member may be conflicting with the interest in assuring the operation of trustworthy and effective leniency programmes, which rely on the cooperation between cartel members and the investigating authority.

In Pfleiderer¹ the discussion was, in short, whether or not a potential claimant should have access to the leniency requests and other information voluntarily delivered by the leniency applicants, in order to prepare /support a claim for damages against the cartel members.

The German court requested a preliminary ruling from the Court of Justice of the European Union (the Court) with a purpose of clarifying if a decision granting access to said information would be compatible with EU law, in particular taking into account the rules of Regulation (EU) n.º 1/2003 on the cooperation and information exchange between the European Commission and national competition authorities regarding an investigation and, on the other hand, the effectiveness of the prohibition laid down in art. 101.º of the TFEU (the legal basis for prohibiting cartels as well as other restrictive agreements).

In its analysis, the Court began by acknowledging that neither the provisions of the Treaty nor of Regulation n.º 1/2003² lay down common (harmonised) rules on the issue of leniency programmes or on the access to documentation delivered by leniency applicants. Even though a model leniency programme designed to achieve harmonisation of some elements of national leniency programmes has been adopted within the European Competition Network, it has no binding effect on the courts of the Members States.

Hence, in the absence of binding regulation under EU law on the subject, it is for Member States to establish and apply rules on the right of access, by persons adversely affected by a cartel, to documents relating to leniency procedures. It must also be assured that the applicable national rules are not less favourable than those governing similar domestic claims and that they do not operate in a way as to make it practically impossible or excessively difficult to obtain compensation.

In its reply to the question address by the referring court the Court further clarified that the provisions of EU law on cartels do not preclude a person who has been adversely affected by an infringement of EU competition law and is seeking redress from being granted access to documents relating to a leniency procedure involving the perpetrator of that infringement.

However, the courts of the Member States should determine the conditions under which such access must be permitted or refused on the basis of their national law and by adequately weighing, on a case by case basis and taking into account all the relevant factors of the case, the interests protected by EU law.

Comentário

With its judgment, the Court adopted a position of neutrality regarding the issue of balancing the interests of private enforcement and the interests of public enforcement (both of which are protected by EU law) and refused to establish a hierarchy between them, in the abstract.

In the (German) case that originated the preliminary ruling, the referring court decided to refuse the access by the potential claimant to the leniency request and leniency-related documents (in favour of the position of the German competition authority).

In practice, however, the judgment of the Court allows national courts a wide discretion of interpretation and implementation of its premises. This may perpetuate the uncertainties on how to handle the matter of access to leniency documents and emphasise the differences in regimes between amongst Member-states.

The European Commission has announced, in the meanwhile the inclusion in its work programme for 2012 of a legislative proposal seeking to clarify the interrelation of private actions with pubic enforcement by the Commission and national competition authorities, in particular as regards the protection of leniency programmes (this means that legislation may be the way to supersede some of the risks presented by the solution envisaged with this judgment).

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