The 9th amendment of the ARC aims at increasing the effectiveness of private antitrust enforcement. This aim does not stop short of obtaining information. In order to strengthen the injured party’s position, the information asymmetry between the injured party and the infringer is to be remedied. Almost reflexively, the new rights to obtain information have been labeled “German Discovery” or “Discovery Light”. So what about these new rights? Are they improving the enforcement of cartel damage claims? Are they going to transfer an Anglo-American legal status into German law?
The initial situation
Mainly due to high obstacles in obtaining information, cartel victims in Germany have been prevented from enforcing their claims effectively in court. Although the infringement decision of a competition authority was already deemed to establish irrefutably the infringement, claimants nonetheless had to assert their capacity to sue, and the actual overcharge. For the latter, claimants were quite often left in the dark: the infringers were to disclose documents not prior to pending proceedings and only after the documents in demand were specifically named. This hindered settlements in the first place and court claims in the second place.
The legislator recognized that German Law was missing pre-trial rights to obtain information for an antitrust damage claim. Therefore, the amended Act provides substantive rights to obtain information that exist independently from a pending court proceeding. Para 33g(1) ARC now provides the injured parties, eg while in settlement proceedings, with the opportunity to threaten the cartelist with an independent court claim for information only – a pending cartel damage claim is not necessary. Also, the new rights to obtain information cannot only be asserted against infringers, but also against every third party that possesses information (with the exception of competition authorities, following separate rules according to para 89c ARC). Therefore, claims can also be asserted against uninvolved third parties as long as they possess information.
However, these pre-trial claims apply only in favor of injured parties. According to para 33g(2) ARC, infringers are only entitled to claim for information if they have already been sued by the injured party for damages or for information (or if the infringers themselves file a suit against the injured party for negative declaratory relief [negative Feststellungsklage] due to passing-on of the damage). This inequality of arms could – contrary to the amendment’s aim – adversely affect settlement negotiations. It remains to be seen whether, further to the infringer’s new special right to obtain information, other general claims for information of German law will still be applicable. According to the grounds of the 9th amendment, the infringer’s rights are to be limited to a defense situation in courts.
I hereby request… What do I request?
Under the previous law, it was difficult to meet the high requirements of phrasing a precise and permissible application. In the application, the requested information had to be specified tangibly. Also, its necessity for the claim had to be asserted. These strict requirements derived from para 142 Code of Civil Procedure (“Zivilprozessordnung”, ZPO) which – other than para 33g ARC – aims at the disclosure of an original document in order to be able to submit proof of a claim (eg a deed). The gathering of information for cartel damage claims is, however, not primarily aimed at collecting evidence to prove a fact. The information as such is the main goal. Hence, it is not necessary to specifically name a certain type of evidence any more. It is, rather, sufficient to name a category of evidence identified by reference to common features of its constitutive elements such as the nature, object, content or time during which they were drawn up. Since the information as such is the main goal, usually no originals have to be handed over and copies (either hard or electronic) are sufficient.
But what does this mean for the application? Is an application precise enough that requests submission of all correspondence that occurred between Mr. Compe and Mr. Tition between 21 October 2015 and 9 June 2017? Are more details necessary, eg by specifying the subjects of the emails, their content or a list of recipients? What dimension does this data encompass?
This is going too far!
Still, an application needs to be phrased precisely enough in order to define the matter in dispute and in order to guarantee enforceability. Also, the new rights are not to be misused for so-called fishing expeditions. Therefore, a number of safeguards have been implemented in order to protect the supposed infringer from too widely phrased set-ups. An application that is permissible by form, but that requests too much, could be disproportionate. Therefore, para 33g(3) ARC provides a number of specific (and not definitive) considerations on the proportionality of the claim. It is thus essential to present a well-balanced application that keeps an eye on the assertion of the claim and on the scope of the information requested. This issue might lead to many disputes.
Furthermore, confidential information and trade secrets have to be taken into account. This information is still protected. Secret information should therefore be kept secret. Or shouldn’t it?