On 2 December 2015, the Dutch Trade and Industry Appeals Tribunal ("CBb") ordered the Authority for Consumers and Markets ("ACM") to grant access to oral leniency submissions to the defendants in the Dutch flour cartel appeal. The CBb weighed the interest of protecting the leniency programme against the interests of the defendants and decided in favour of the latter.
In the context of the ACM's leniency programme in cartel cases, leniency applicants may choose to provide their leniency statements orally. During the administrative procedure, defendants are subsequently provided access to transcripts of the oral statements at the ACM's premises. They are, however, not allowed to make copies and have to agree that they will only use the information for their defence in the cartel proceedings. This procedure is designed to safeguard confidentiality of the leniency statements, which may be an important precondition for leniency applicants to participate in the programme.
In the proceedings before the CBb, the ACM provided the transcripts of the oral statements to the CBb with the request to withhold them from the other parties to the proceedings, considering the importance of confidentiality.
The CBb rejected the ACM's request, considering that the protection of the ACM's leniency programme was in this case not as important as safeguarding the rights of defence. In this respect, the CBb considered it relevant that the parties already had knowledge of the content of the oral statements so that the interest in withholding the transcripts from them was limited.
The decision may lead the ACM to reconsider its current practice regarding oral statements in its leniency programme.