On 24 August 2011, the Paris Commercial Court ordered the French Competition Authority to disclose certain documents gathered in the course of a procedure that ended by way of a settlement with commitments (decision No 10-D-20 of 25 June 2010 relative to practices implemented by Highco and Sogem in the online discount coupons sector). MLDC, a competitor of Highco and Sogem, filed a complaint before the Paris Commercial Court against the two latter companies claiming damages for the alleged harm caused by their anti-competitive practises.

In France, the most difficult part to succeed in such a follow-on action for an applicant is undoubtedly to prove the fault, which implies in this context to prove the existence of anti-competitive practices, without any power of investigation. One could think that this is easier for follow-on actions, but in a case settled by way of commitments, the evidence is not really helped by the decision of the Competition Authority since it does not take a position on the undertakings’ guilt but simply states that the commitments respond to the competition concerns the Authority had.  

In this context, the Court’s reasons to ask for disclosure are easy to understand. Thus, the Court starts by reminding that public and private enforcement do not pursue the same goal. Consequently the action before the Competition Authority does not put an end to the civil action for compensation.

Then, the Court highlights that there is a legal ground to order a third party to disclose documents: article 138 of the French Code of Civil Procedure which allows a judge, at the request of a party to the proceedings, to order the production of a document held by a third party. The only limit to this power lies in a so‑called sufficient and legitimate cause (‘empêchement légitime’), which includes in particular business secrets and privacy data. According to the Court, there is none here since it only asks for non-confidential versions of the documents in the file of the Competition Authority.

The Court also rules out the arguments based (i) on article L.463 of the French Commercial Code which provides that the documents gathered by the Authority are protected by the confidentiality of investigations, by reminding that this principle can be set aside in the interest of the rights of defence, and (ii) on a Law of 1978 which bans the communication of documents collected by the Competition Authority during its investigation, by considering that this prohibition does not apply to judges.

This decision, whose next step is eagerly awaited, will please plaintiffs in follow-on actions. On the contrary, on the side of the undertakings who are the subject of public enforcement decisions, it will raise concerns since they have no certainty that the information and evidence voluntarily supplied in the context of a leniency application, will be safeguarded by the Competition Authority and won’t be disclosed to those seeking to bring cartel damages actions.

It is interesting to note that, at EU level, the Commission does not allow easily the disclosure of documents, all the more when business secrets or evidence collected via leniency are involved. Without sacrificing the private enforcement for the public enforcement (see the current work on the development of private actions), it nevertheless insists on the role of leniency given the difficulties of competition authorities to detect and to fight against cartels.

The Commission has recently reiterated its position following the Pfleiderer judgment of 16 June 2011, in which the European Court of Justice decided that it is incumbent on national courts to decide on a case-by-case basis whether to disclose leniency‑related information by weighting ‘the respective interests in favour of disclosure of the information and in favour of the protection of that information provided voluntarily by the applicant for leniency’. Commenting upon the decision, the European competition commissioner Joaquín Almunia, in a speech of 16 September 2011, has assured that ‘the Commission is determined to defend its leniency programme and the programmes of our ECN partners’. Since then, Mr Almunia, in a speech made before the European Parliament on 22 September 2011, expressed ‘the need to regulate access to evidence held by competition authorities’ as part of broader legislation on antitrust damages actions.