In our October 29, 2014 briefing we provided an overview of third party access, particularly claimants’ access to documents in EU cartel proceedings.  In summary, under current case-law, the European Commission (EC) has made it clear that claimants’ access to the EC file or a copy of a confidential Article 101 decision will be granted only rarely.  To date, the best that claimants’ can hope for is access to portions of the EC’s draft non-confidential version of the decision before the EC and the parties to the proceeding end their confidentiality claims discussions. 

As a result, claimants for damages stand a much better chance of obtaining access to the EC file through national courts under the applicable rules of civil procedures and, until the Damages Directive becomes law, consistent with the Court of Justice ruling in Pfleiderer.  This mirrors what has been happening in the UK in recent years - see for example, National Grid.  Several ongoing proceedings before UK courts provide further indications of a trend towards an expanded access to the authorities’ evidence in follow-on damage claims.

Recently, the claimants in the UK civil actions relating to the Airfreight cartel investigation and MasterCard I on multilateral interchange fees (MIF) have been granted or are in the process of getting access to certain documents of the EC file.

For example, in the UK Mastercard civil action,[1] Judge Gerald Barling has granted Sainsbury, a claimant, access to 13 documents that MasterCard prepared as part of its participation in the EC’s investigation.  Among the documents that Sainsbury will receive are copies of MasterCard’s reply to the EC’s Statement of Objections (SO) and its response to the EC’s supplementary SO.

In theory, following the implementation of the Damages Directive and taking stock of a growing body of case-law, claimants should be able predict how their requests for access to evidence will be treated by national judiciaries.  Defendants should also be in a position to anticipate early in the administrative proceedings which pieces of evidence that they submit may find their ways into discovery in follow-on damage proceedings.

For its part, the EC is currently trying to get its own house in order.  As the Damages Directive is only addressed to the Member States, the EC is not bound to implement the rules and principles of the Directive and, formally, has no obligation to do so.  However, in an effort to harmonize its rules on access to file, and how it is subsequently used with the Damages Directive, on December 17, 2014, the EC opened consultations on proposed amendments to:  (i) Regulation 773/2004 relating to the conduct of proceedings by the EC pursuant to Articles [101 and 102 TFEU]; (ii) the EC Notice on Access to File; (iii) the EC Notice on Leniency; (iv) the EC Notice on Settlements; and (v) the EC Notice on Cooperation between the EC and the National Courts

The majority of the EC’s proposed changes will be to Regulation 773/2004.  Among other things, Regulation 773/2004 will:

  • Have a new article on the EC’s leniency program, which includes a statement making it clear that “pre-existing information” that is submitted to the EC as part of an application for immunity or leniency is not part of a leniency corporate statement. 
  • Include a new provision whereby the EC will offer parties appropriate methods of providing settlement submissions other than by written submission, including by oral statement.  The procedure for submitting an oral statement as part of a settlement procedure will more or less be the same as for immunity/leniency oral statements. 
  • Clearly state that the following categories of information must not be used in proceedings before national courts until the EC has closed or otherwise terminated its proceedings: (a) information that was prepared by other natural or legal persons specifically for the proceedings of the EC and (b) information that the EC has drawn up and sent to parties in the course of its proceedings.

Submissions must be made by March 25, 2015.