A June 14, 2011, judgment from the European Court of Justice (ECJ), the EU’s highest court, has made it more likely that third parties claiming damages against companies for breaches of EU or national competition law will be able to use leniency applications as part of their evidence.
The EC has consistently taken the line that leniency applications (“the voluntary presentations by leniency applicants of their knowledge of a cartel and their role therein prepared especially to be submitted under [the EC’s or a national competition authority’s] leniency programme,” which should be distinguished from pre-existing documents such as incriminating e-mails) should not be accessible to private claimants. This is on the basis that, although an application for leniency does not protect a company from private damages claims, making applications available would make it less likely that companies would come forward in the first place.
The ECJ decided that in principle EU law allows access to leniency applications. However, whether this should take place in any particular case is a matter for the national court before which a claim is brought.
The case concerned an application filed with a national competition authority and it is not yet clear whether the reasoning can be extended to leniency applications made to the EC itself. An EC official has stated that the EC will not be changing its position, but it seems clear that the reasoning of the judgment extends to cartel investigations dealt with by the EC. Further, in a current damages claim before a UK court, the judge appeared to recognize that the ECJ’s view would extend to EC leniency applications and indicated that the judgment had “wide implications.”