Pursuant to the Dutch Government Information (Public Access) Act (Wet openbaarheid van bestuur, to be referred to below as the ‘Dutch Public Access Act’) any party is entitled to request an administrative authority to make certain documents public. The European equivalent of the Dutch Public Access Act is Regulation (EC) 1049/2001 regarding public access to European Parliament, Council and Commission documents (to be referred to below as the ‘European Public Access Regulation’). A reoccurring question is how requests made to the Netherlands Authority for Consumers & Markets (Autoriteit Consument & Markt) or the European Commission on the basis of the Dutch Public Access Act or the European Public Access Regulation, respectively, must be assessed in the event that the information in question has been provided in the context of a leniency programme, since the essential reason for such programmes is to encourage cartel members to reveal evidence of prohibited cartel agreements in exchange for immunity from penalties or a penalty reduction. There is a risk that the effectiveness of the leniency programme would be undermined in the event that such evidence subsequently could be requested by third parties (such as parties that allege that they have sustained damage as a result of the cartel), as aggrieved parties would have a better chance of obtaining compensation of damage in the event that they were able to inspect the competition authority’s evidence.

The principle underlying both the Dutch Public Access Act and the European Public Access Regulation is that government (public sector) information is public. Nonetheless, both the Act and the Regulation contain a number of grounds for an exception and restrictions. The relationship between the interest in disclosing information for the benefit of aggrieved parties on the one hand and the interest in the effectiveness of the leniency programme on the other already played an important role in two judgments that were passed by the European court. In the Pfleiderer case and the Donau Chemie case the European Court of Justice ruled that national courts must weigh the relevant interests in order to determine whether third parties should be able to have access to information from the (in those cases, national) leniency programme.

More recently, the Court of Justice ruled in its decisions in the Degussa and Akzo cases that information that is provided in the context of the leniency programme no longer could be deemed to be company confidential (see also an earlier blog). However, in the Degussa and the Akzo cases the Court did not weigh those interests in civil proceedings for compensation of damage, but rather in connection with the intended publication of a modified penalty ruling by the European Commission.

The disclosure issue in the Netherlands

The conflict between the disclosure of leniency documents on the one hand and the right to obtain information also has led to legal disputes at the national level. A consideration comparable to the questions at issue in the decisions referred to above played a part in recent appeals proceedings related to the ‘flour cartel’. In those proceedings the Netherlands Authority for Consumers & Markets submitted the confidential version of a number of procedural documents, and when it did so it stated that only the Dutch Trade and Industry Appeals Tribunal (College van Beroep voor het bedrijfsleven) was permitted to take cognisance of those documents. Thus, in accordance with that statement the other parties in the appeals proceedings (which were the cartel members that were challenging the penalties that had been imposed but that had not applied for leniency) were not permitted to take cognisance of the oral leniency declarations that the cartel members had made. However, the Trade and Industry Appeals Tribunal did not accept that statement and ruled that in the case at hand, the interest in being able to put forward a proper defence weighed more heavily than the Authority for Consumers & Markets’s interest in guaranteeing the effectiveness of its leniency programme. In that context the Trade and Industry Appeals Tribunal found that the content of the statement already was known to the parties that had not applied for leniency and the involvement of the parties that had applied for leniency already could be inferred from documents that were not confidential.

That decision was rendered in the context of appeals proceedings that were brought against a decision that was rendered by the Authority for Consumers & Markets. The question now is what implications that decision has for aggrieved parties that want to collect evidence via the court to support their claim for compensation of damage. An important difference is that the proceedings before the Trade and Industry Appeals Tribunal related to the right of the (alleged) cartel members on which a penalty (or a punitive sanction) had been imposed to be able to adequately defend themselves, but proceedings brought to claim compensation of damage involve the interest of third parties in being able to substantiate their claims.

For the time being it appears that in proceedings to recover damages (in respect of cartels) the Authority for Consumers & Markets still has the ability to refuse to grant access to certain documents. For example, it recently rejected an appeal brought by xCat Publishing to be permitted, on the ground of the Government Information (Public Access) Act, to disclose certain documents with respect to ‘Nederland Schoon’ and o disclose the role of hosting companies. The Authority for Consumers & Markets did so on the ground of the duty of confidentiality stipulated in the Dutch Establishment Act. In particular, the Authority for Consumers & Markets found that the Dutch Public Access Act is a general act, in respect of which the duty of confidentiality on the ground of Article 7 of the Establishment Act– as a special act – takes precedence. That is in line with the interpretation that the District Court of Rotterdam, the Netherlands, gave at the beginning of this year on the basis of the legislative history in respect of an application on the ground of the Government Information (Public Access) Act that Sandd had submitted. In that case Sandd could not request any information about the postal rates applied by PostNL. Thus, the Establishment Act gives the Authority for Consumers & Markets an extra trump card as a result of which it does not have to disclose leniency documentation and thereby sideline the Dutch Public Access Act.

The Directive on private maintenance of competition law

The issue of disclosure also is relevant in the context of Directive 2014/104/EU on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union Text with EEA relevance (to be referred to below as the ‘Directive’). That Directive is intended to make it easier for parties that have suffered loss due to an infringement of competition law to recover from the cartel members the loss that they have incurred. However, such proceedings to recover damages often are impeded due to the lack of evidence. It is therefore important for aggrieved parties in proceedings to recover damages to gain access to information that the competition authority has collected in its investigation of the cartel. The European legislature intended the Directive to make it easier for parties such as those that have suffered a loss due to an infringement of competition law to obtain compensation for their loss from the infringing parties. However, at the same time the Directive is intended also to safeguard the effectiveness of leniency programmes. The underlying principle is that parties that cooperate should not be placed at a disadvantage compared with parties that refuse to cooperate in the investigation. In that context leniency is an important, if not the most important, source of information when tracking down cartels. The Directive therefore provides that national courts may never grant access to leniency declarations with a view to claims for damages.

Thus, the Trade and Industry Appeals Tribunal’s decision in the meal cartel case would appear to be at odds with the protection that the Directive is intended to provide for leniency declarations. In spite of the fact that the Directive stipulates that access may never be granted to leniency declarations, the Trade and Industry Appeals Tribunal ruled, to the contrary, that the ability to take cognisance of leniency declarations cannot be ruled out in advance.

Although the case that was before the Trade and Industry Appeals Tribunal did not involve any claims for damages, the fact remains that the absolute protection of leniency declarations that have been issued has been eroded as a result of that decision, since as a result of that decision the supervisory authority no longer can offer any guarantees with respect to the confidentiality of leniency declarations that have been issued. The question is to what extent that is in line with the case law that has been handed down by the Court of Justice in the Inter-Environment Wallonie case, on the ground of which, already during the transitional term of a directive, Member States must refrain from taking measures that impede the result prescribed by a directive from being seriously endangered.