The European Union’s top court rules that a national law which requires the consent of all parties before access to the file is given to third-party antitrust damages claimants is incompatible with EU law; a national court must be able to decide on disclosure weighing up the interests in doing so.

On 6 June 2013, the Court of Justice of the European Union (CJEU) added another piece to the access to documents jigsaw in third-party antitrust damages actions (Case C-536/11, Bundeswettbewerbsbehörde v Donau Chemie AG and others).  In the case at hand, it was ruled that a law which places a de facto blanket restriction on access to the file in competition proceedings is incompatible with EU law.

The ruling comes in the wake of a number of seminal rulings on this vexed issue, including the CJEU’s ruling in Case C-360/09, Pfleiderer v Bundeskartellamt, and represents another indication that the stage is slowly being set for damages claimants to be able to bring claims more easily.  Much like the case in Pfleiderer, the impact of Donau Chemie may extend beyond cartel damages proceedings in a single EU Member State.

Background

The case arose out of an order by the Austrian Cartel Court imposing fines on a number of companies found to have infringed the EU antitrust rules in the market for the wholesale distribution of printing chemicals.

A representative trade association, acting on behalf of companies active in the printing sector, sought an order from the Vienna Higher Regional Court to obtain access to the file relating to proceedings brought by the Austrian competition authority on the basis of applications for leniency made by one of the cartel defendants.  It did this in order to gather evidence enabling an assessment to be made, in particular, of the nature and amount of the potential loss suffered by the trade association’s members, and to determine whether it was appropriate to bring an action for damages against the cartel defendants in the case.

The cartel defendants, however, refused to consent to the trade association being granted access to the file.  They refused on the basis of Paragraph 39(2) of the Austrian Federal Law on Cartels which reads  “Persons, who are not parties to the procedure, may gain access to the files of the Cartel Court only with the consent of the parties”.

Following such refusal, the Vienna Higher Regional Court asked the CJEU whether the Federal Law on Cartels was compatible with EU law.  It did so in the light of the CJEU’s ruling in Pfleiderer, which held that a national court must determine—on a case-by-case-basis—whether (leniency) documents should be disclosed to damages claimants by weighing the interests of the claimants in gaining access against and the interests protected by EU law.

The CJEU’s Ruling

In the light of its ruling in Pfleiderer, the CJEU categorically held that a national law must not preclude any possibility for the national court to perform a balancing exercise of the interests involved when determining whether to provide access to third-party claimants to (leniency) documents forming part of the file in national Article 101 Treaty on the Functioning of the European Union proceedings.  The CJEU held that such an over-restrictive rule renders the exercise of the right to compensation which a potential claimant derives from EU law excessively difficult.  In particular, it was held that such rule runs counter to the principle of effectiveness as enshrined in EU law.

Furthermore, the CJEU ruled that “The mere risk that a given document may actually undermine the public interest relating to the effectiveness of the leniency programme is liable to justify the non-disclosure of that document.”  This appears to suggest that a court must perform the balancing exercise for each individual document before deciding whether to order its disclosure.

Comment

Much like in its ruling in Pfleiderer, the CJEU in Donau Chemie did not provide any real guidance on the factors judges should take into account when assessing whether and which (leniency) documents should be disclosed to a damages claimant.

Arguably, much like in Pfleiderer, the ruling in Donau Chemie sends the signal that the protection of (leniency) documents underpinning an antitrust investigation is not absolute.  As such, it may make it more difficult for the European Commission to argue before the US courts, for example, that documents disclosed to it by companies subject to an EU cartel investigation should not be disclosed to private litigants in US litigation.  The alarm bells should not necessarily be ringing, however.  Traditional deference to the EU leniency programme and recent US practice should allay such fears for the meantime.