EUROPEAN ANTITRUST UPDATE - The European Court of Justice boosts private enforcement in the EU (Case C-360/09)

In a judgment delivered on 14 June 2011, the European Court of Justice decided that the provisions of EU law on cartels do not preclude access to documents held by the competition authority that sanctioned the infringement, including documents relating to the leniency procedure involving the perpetrator of that infringement.

This judgment intervenes in the context of a preliminary ruling requested by a German Court further to a plaintiff request to access documents held by the German competition authority (the Bundeskartellambt). The Bundeskartellambthad imposed a €62 million fine on three European manufacturers of decor paper (and five individuals) for agreement on price and capacity disclosure. A company called Pfeildererclaimed it hadpurchased decor paper from these suppliers for more than € 60 million over the last three years. To preparethecivil action fordamageclaim, Pfeilderer requested full access to the Bundeskartellambt'sfile on the basis of a provision of the German Code of Criminal Procedure. The later restricted such an access to the three decisions imposing fines and to a redacted file where all confidential information had been removed. On appeal, the relevant German Court asked the Court of Justice whether EU competition law requires interpreting the national legislation of a Member State so that access to the investigation file - including leniency documents -begranted.

The Court of Justice madeit clear that no EU binding rulegovernstheaccess to documents voluntarily submitted under a national leniency program. The Court insisted that the absence of such a rule does not authorize national courtsto jeopardize the effective application of EU competition law through a too restrictive interpretation of theirdomestic legislation. The Court then defined the two interests to analyze when deciding the access to the investigation file.

The Court looked first at the interest for effective leniency programs that enable Member States to uncover cartels. The effectiveness of those programs could be compromised if leniency documents were disclosed to persons wishing to bring an action for damages. Then, the Court considered the right to claim damages for the loss caused by conducts restricting competition. Itemphasized again that "the existence of such a right strengthens the working of the Community competition rules and discourages agreements and practices, frequently covert, which are liable to restrict or distort competition. From that point of view, actions for damages before national courts can make a significant contribution to the maintenance of effective competition in the EU"(See also Case C-453/99).

In the end, the Court concluded that, as a matter of principle,EU antitrust law does not prevent national courts from granting access to leniency documents. But,they have to balance the interest for effective leniency against the right to claim damages when assessing whether to grant access to such documents.

This judgment contributes significantly to the complex debate about private enforcement before national courts in the EU. Civil actions imply the difficult demonstration of the extent of the damage suffered and the causal link with the infringing conduct. In a context where the discovery procedure is either limited or inexistent in the EU, access to the competition authorities' file may constitute an important support to successful damage claims.

One of the immediate consequences of this judgment is also to force national courts to reason their decision to refuse or grant full or partial access to these files. It remains to be seen whether the Court would extend the scope of this judgment to the European Commission's antitrust file. There is no specific EU antitrust provision that gives such a right of access for third parties willing to claim for damages. But the Commission (and not only DG COMP) is under a general duty to give access to documents subject to certain exceptionsamong which the protection of "the purpose of inspections, investigations and audits" (Regulation EC N°1049/2001 regarding public access to European institutions' documents). The General Court is currently considering that precise question in another case involving the European hydrogen peroxide cartel(Case T-437/08). In this case, CDC Hydrogen Peroxyde claims that the principle of effective compensation for infringement of EU antitrust rules must be valued more highly than the interest of the infringing companies in not disclosing the details of the infringement and the scope of its cooperation with the Commission. The debate on the balance between these two "overriding" interests is thus still ongoing.