Following the European Court of Justice's (ECJ) Pfleiderer judgment (C-360/09), the Dusseldorf Higher Regional Court – the competent court for appeals against fines imposed by the Federal Cartel Office (FCO) – has delivered a decision(1) regarding access to leniency statements in cartel proceedings. The court's August 22 2012 decision continues the trend established in the Bonn Local Court's recent ruling(2) in Pfleiderer, denying such access on the grounds that the FCO leniency programme may lead to the efficient discovery and ending of cartels only if applicants can trust in the confidential treatment of their leniency statements.
On receipt of a leniency application, the FCO initiated an investigation in July 2008 into suspected cartel activities in the roast coffee market. The investigation was concluded in December 2009, with fines totalling €159.5 million imposed on three German coffee roasters and six of their responsible employees for having coordinated over several years the level, extent, date of announcement and implementation of price increases for filter coffee, whole beans and coffee pads. Some of the cartel participants appealed the FCO's order before the Dusseldorf Higher Regional Court.
A customer of the suppliers involved in the cartel - the purchasing unit of a food retail chain - applied to the court to which the FCO case file had been transferred, seeking access to the complete file, including the leniency applications concerning the appellants and the other companies which had been the subject of the FCO's investigation.
The court found that the applicant's interest in reviewing the findings contained in the FCO's orders regarding the infringement prevailed over the cartelists' interest in maintaining the secrecy of this information. However, this did not apply to the extent that the orders contained personal information and business secrets beyond the information concerning the infringement. Accordingly, the applicant could claim access to the FCO's orders only after such business secrets and personal information had been redacted.
Moreover, the court dismissed the applicant's claim for access to the other elements of the case file - notably, the leniency applications. The court highlighted that the leniency applicants had a legitimate expectation that their voluntary, self-incriminating statements would be kept confidential in accordance with the FCO's leniency notice. With reference to the ECJ's Pfleiderer judgment,(3) the court stressed that the disclosure of leniency statements would negatively affect the willingness of cartel participants to make use of the FCO's leniency programme in future cases. Furthermore, disallowing access to the leniency documents would not unduly impede the successful filing of damage claims by the applicants, since the findings regarding the alleged cartel infringements in the FCO's orders were – to the extent that those orders have become final – binding for the civil court. On the other hand, the leniency statements did not contain information which would facilitate the substantiation and proof of damages incurred by the applicant as a result of the infringement. Accordingly, the disclosure of the leniency statements would disproportionately impair the cartelists' legitimate confidence in the confidentiality of their statements.
Finally, the court held that the applicant could not claim access to the redacted case file and court exhibits, as the necessary review and deletion of business secrets from the entire case file and exhibits would significantly delay the proceedings, whereas the factual basis of the alleged infringement was already set out in the FCO's orders. In the court's view, it was sufficient to provide the applicant with an index of the exhibits, enabling it to determine and establish whether it needed access to specific exhibits in order to verify its potential damage claims.
In keeping with the Bonn Local Court's judgment in Pfleiderer, and in accordance with ECJ case law, the Dusseldorf Higher Regional Court has rightly endorsed the FCO's restrictive policy regarding access to leniency documents. Nevertheless, in weighing the countervailing interests involved, the court referred in the first place to the appellants having challenged the calculation of the fine only, and not the FCO's findings regarding the appellants' participation in the cartel. One could infer from this statement that, if the appellants had also challenged their participation in the cartel, the presumption of innocence in their favour could potentially override the interest in accessing the FCO's order.
On the other hand, while the Bonn Local Court had in Pfleiderer also allowed access to the redacted case file and exhibits, the court dismissed the applicant's claim to this effect since the necessary redaction of business secrets by the court and potential disputes between the parties on the deletions to be made would materially delay the proceedings. In light of this approach, it would appear that where a fine has been appealed and the file transferred to the higher regional court, the scope for third-party access claims becomes even smaller and protection against such claims even more comprehensive than during the administrative proceedings before the FCO. Companies that anticipate they may become subject to cartel-related damage claims may therefore be advised to appeal a fine in order, among other reasons, to trigger the higher regional court's jurisdiction over the claimants' access claims. The court held itself competent to decide on access to the entire case file transferred to it, including the parts relating to cases which were not pending before the court since the respective orders had not been appealed and had become binding.
It is to be expected that the assessment of future requests for access to leniency documents will remain subject to the decisions of the competent courts in each case, since the proposed amendment to the Cartel Law – which explicitly denies access to leniency applications – has been withdrawn after the federal government and the Ministry of Justice expressed their concerns.
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