The European Court of Justice (ECJ) recently ruled that documents relating to a leniency programme may be disclosed to persons seeking damages in civil antitrust actions.[22] It is up to the national courts to determine on a case-by-case basis, and in accordance with national law, whether the interests of disclosure of information outweigh the interests of protection of the information voluntarily provided by the leniency applicant. Considering that non-disclosure is the key to an effective leniency programme, this ruling could deter companies from applying for leniency. Fewer leniency applications could mean that fewer cartels are uncovered which, in turn, could lead to fewer civil damages claims. National courts thus have a task cut out for them in performing a careful balancing act. Dutch courts in particular will need to prepare themselves, as the Netherlands currently appears to be an attractive venue for making international cartel claims.[23]

In its preliminary ruling, the ECJ acknowledged that leniency programmes are useful tools to uncover cartels and may therefore serve the objective of effective enforcement of the EU competition rules. The effectiveness of leniency programmes could be compromised if documents relating to a leniency procedure are disclosed to persons wishing to bring an action for damages. However, it is settled case law that any individual has the right to claim damages for losses incurred through conduct which is liable to restrict or distort competition. The existence of this right significantly contributes to the maintenance of effective competition by its discouraging effect on cartels. The ECJ finds that the tension between public and private enforcement of the EU competition rules should be resolved by carrying out a balancing exercise according to national law, since there are no common EU rules on leniency or on the right of access to documents relating to a leniency procedure voluntarily submitted to a national competition authority pursuant to a national leniency programme.

It is still unclear how this will work in practice. A UK judge, in search of more clarity regarding disclosure, is already considering a new reference for a preliminary ruling to the ECJ in a pending damage claim.[24] Dutch courts who have to rule on pending requests for disclosure may feel tempted to adopt the approach outlined by advocate general Mazák, who suggested distinguishing between self -incriminating statements voluntarily provided by leniency applicants and other pre-existing documents submitted in the course of a leniency procedure.[25]  According to the advocate general, access to self-incriminating statements could reduce the attractiveness of leniency programmes and thus undermine the effective public enforcement of the EU competition rules. Civil litigants should in his view, however, have access to pre-existing documents submitted by a leniency applicant, since these documents exist independently of the leniency procedure and could, at least in theory, be discovered elsewhere.

It remains to be seen which approach the EU courts will take when handling disputes on requests for the disclosure of documents relating to the European Commission's leniency procedure. Plaintiffs in the EU, as well as those in US civil damage claims involving worldwide cartels increasingly request disclosure of documents submitted to the European Commission in its leniency procedure.[26] Such disclosure claims need to be assessed on the basis of the European Commission's Leniency Notice[27] and the EU's Transparency Regulation[28]. A number of cases are pending which may shed light on how to deal with disclosure requests relating to the Commission's leniency procedure.[29]

In the meantime, the recommendation by the European Ombudsman in response to a complaint that the European Commission refused access to documents relevant to the complainant's civil damage action may prove useful.[30] The European Ombudsman recommended the Commission to conduct a balancing exercise in its assessment of requests for access to documents by indicating, when replying to a request for access (i) that, under Article 15 of Regulation 1/2003[31], national courts are empowered to request documents from the Commission for the purposes of applying the competition rules, and (ii) whether the documents in question might be relevant for damages actions before national courts.