The Commercial Court in Paris has once again ordered the French Competition Authority (the Autorité de la concurrence, the "FCA") to disclose documents in its file regarding an antitrust investigation on private damages. However, the new decision, allows for the disclosure on a different procedural setting and on different grounds than the previous decision, which was rendered by a different Chamber of the court on August 24, 2011.
The latest decision was made in the aftermath of an infringement decision pursuant to a request for disclosure made by the defendant. This contrasts with the previous decision that involved a settlement procedure and where the request was made by the plaintiff.
Both decisions ordered disclosure of documents, but on different legal grounds. Article L. 463-3 of the French commercial code prohibits the disclosure of information that is part of an FCA investigation and, therefore, confidential. However, article 138 of the French code of civil procedure provides that a judge can order the production of documents if the party wishes to exhibit (i) an official document, (ii) an agreement to which it was not a party or (iii) any document held by a third party.
In the August 2011 decision, the court ordered the FCA to disclose documents in its file on the basis of article 138. In the present case, however, the court held that the production of documents in the FCA's file could not be considered a confidential disclosure under article L. 463-3 because both parties were familiar with the documents at issue.
To add to the confusion, the court justified the disclosure as necessary for the requesting party to exercise its rights. This additional justification muddies the standard that allows for production of these documents -- the court had already taken the position that disclosure is possible when the documents are known by both parties.
In the absence of more details on the reasoning of the court, it remains to be seen what the implications for leniency applications will be. At this point, it would be useful to have a decision by the Cour de cassation (the French Supreme Court for judicial matters) which could more fully explain the courts' rationale and provide guidance on this issue, by specifying the scope of the disclosure of documents in the FCA's file.