Access to Documents for Cartel Victims and Cartel Members – is the System Coherent?

Posted by Social Science Research Network

Access to Documents for Cartel Victims and Cartel Members – is the System Coherent? Bjorn Lundqvist (Copenhagen Business School) & Helene Andersson (Stockholm University)

Abstract: In this paper we analyse the right to access documents for cartel victims and cartel members. We start with an analysis of the case law from the European Court of Justice and the General Court. The effects of the new Private Enforcement Directive will thereafter be scrutinized. These two sub-chapters are divided so that we analyse the requestors: (i) individuals or (ii) national courts, and the recipients of these requests: (iii) potential or real defendants, (iv) national competition authorities, or (v) the European Commission, separately. Different legal systems are triggered depending on who makes a request and who is the receiver of such a request, and the potential success of obtaining the documents varies considerably. Thereafter, we discuss the rights to the defence and access to documents while being subject to a cartel investigation by the Commission. Our finding is that different legal systems are triggered depending on who makes a request and who is the receiver of such a request, and the potential success of obtaining the documents varies considerably. In fact, the system is not coherent.

We conclude with some suggestions for the Member States on how to transpose the Directive so as to maximize private actions through granting access to documents without thereby dismantling the leniency programmes.