The Court of Justice of the European Union ("CJEU") yesterday issued an important judgment on the rights of potential claimants for antitrust damages to access cartel leniency documents which are held on the file of an antitrust authority (Case C-536/11 – Bundeswettbewerbsbehörde v Donau Chemie AG and others). The CJEU held that an Austrian law which prohibits third party access to the Austrian Cartel Court's files in competition law proceedings absent the parties' consent was not compatible with EU law.

This judgment provides additional guidance on the correct interpretation of the CJEU's Pfleiderer judgment (Case C-360/09), and rules on how far EU national law can go in striking a balance between maintaining effective antitrust law leniency programmes and facilitating follow-on damages actions.

The dispute in question

A trade association active in the printing sector (Verband Druck & Medientechnik) sought to obtain access to the files of the Austrian Cartel Court, which included leniency documents. In 2010, the Austrian competition authority (the BWB) fined a number of companies for their alleged participation in a cartel in the wholesale distribution of chemicals. The trade association was interested in the documents as it wanted to explore the potential of follow-on damages actions to be brought by its members.

The stumbling block for the trade association was a provision of Austrian national law (Paragraph 39(2) of the Austrian Federal Law of 2005 on Cartels and Other Restrictions of Competition) which restricts access to cartel documents, unless the parties to the cartel give their consent. This provision applies only to cartel cases. In other civil and criminal law cases, Austrian law allows the courts to weigh the competing interests against each other, and may grant access to sensitive documents.

The Cartel Court was concerned that the provision of Austrian law in question might breach the principle of effectiveness of EU law, in particular following the CJEU's recent judgment in Pfleiderer (Case C-360/09). In Pfleiderer, the CJEU held that it is for Member State courts to decide the conditions for granting access to leniency documents, by weighing the competing interests under EU law on a case-by-case basis.

The Cartel Court sought a preliminary ruling from the CJEU.

The preliminary ruling

The CJEU held that EU law does preclude a national law provision under which access to documents (including leniency documents) relating to national proceedings concerning the application of Article 101 TFEU by third parties with a view to bringing damages actions is made solely subject to the consent of all the parties to those proceedings, without leaving any possibility for the national courts of weighing up the interest involved.

The CJEU noted:

  • The national courts must weigh up the respective interests in favour of disclosure and in favour of protection. This is because any rigid rule on access to documents, "either by providing for absolute refusal to grant access to the documents in question or for granting access to those documents as a matter of course", is liable to undermine the effective application of Article 101 TFEU and the rights that provision confers on individuals.
  • Any weighing up of interests justifying disclosure of information and the protection of that information can be conducted by national courts only on a case-by case basis.
  • The argument that there is a risk that access may undermine the effectiveness of a leniency programme cannot justify a refusal to grant access to that evidence. However, the fact that such refusal is liable to prevent damages actions from being brought requires the refusal "to be based on overriding reasons relating to the protection of the interest relied on and applicable to each document to which access is refused".
  • The mere risk that a given document may actually undermine the public interest relating to the effectiveness of the national leniency programme is liable to justify the non-disclosure of that document.

Conclusion

This judgment, like the Pfleiderer judgment, sets out broad principles, leaving in practice some uncertainty regarding the protection of leniency materials in the EU. The one thing that potential leniency applicants need in this area is certainty and this is still lacking.

There may be further clarity shortly. It is expected that the European Commission will publish this month a package of proposals aimed at facilitating damage claims, which will deal specifically with the issue of access to leniency documents by third parties and the protection of leniency programmes.