In the notorious Pfleiderer saga, the Bonn Local Court (Amtsgericht Bonn) handed down a judgment on 18 January 2012, refusing to disclose leniency applications to damage claimants. Such applications are made by cartel members in order to receive immunity from fines in return for admission of participation in the cartel and cooperation with the investigation.

The Bonn Local Court decided to protect the confidentiality of information supplied by the leniency applicants rather than to reveal it to damage claimants. This judgment is the first concrete application of the landmark judgment of the EU Court of Justice ("ECJ"), in the same case, on the right of access of damage claimants to leniency applications.

In 2008, the Bundeskartellamt, the German competition authority, fined three European manufacturers of raw materials for laminate flooring for a violation of the cartel prohibition. In the wake of that decision, Pfleiderer, a purchaser of these raw materials, submitted an application to the Bundeskartellamt, seeking access to all the material in the file, including the leniency applications, with a view to preparing a civil action for damages. The Bundeskartellamt denied the application.

Subsequently, Pleiderer took the case to the Bonn Local Court, which referred the question of whether damage claimants should be granted access to leniency applications to the ECJ for a preliminary judgment. The ECJ held that EU competition law does not preclude a person who has been adversely affected by a cartel from being granted access to leniency applications from cartel members, but that it is for the national courts to determine, on the basis of their national law and on a case-by-case basis, the conditions under which access must be permitted or refused. In making this determination, the national court must weigh the interests of damage claimants in such access against the interest of ensuring the efficacy of leniency programmes established for the purpose of detecting, punishing and ultimately deterring cartels.

After having considered the legal and practical implications of Pfleiderer's application, the Bonn Local Court has now ruled that the effective application of leniency programmes should prevail over the interests of damage claimants. It therefore dismissed Pfleiderer's request for access to the leniency applications.

Meanwhile, in a similar case, the English High Court, in a judgment of 4 April 2012, granted partial disclosure of leniency applications to damage claimants. The High Court considered that some of the leniency documents must be disclosed, as they could be of sufficient relevance to the damage claimants. Other leniency documents were considered not to be sufficiently relevant for the claimants and disclosure was therefore not required. With regard to this latter category, the High Court held that the interest of protecting the information in order to make for an effective leniency policy outweighed the interest of providing disclosure to assist the damage claimants.

These recent judgments show that whether leniency documents will be disclosed to damage claimants depends on a case-by-case analysis of the interests involved, without there being a bright-line criterion allowing for a predictable outcome. The European Commission believes that this uncertainty may negatively influence the decision of a cartel member to apply for leniency and, hence, the effectiveness of its leniency programme. It has therefore indicated that a European legislative framework could be required to remove this uncertainty. In other words: new legislation is on its way…