Disclosure of Leniency Documents in the United Kingdom: Is the Draft Directive Creating Barriers?

Sebastian Peyer, Aug 12, 2013

The European Commission has recently proposed a Directive on rules governing actions for damages for the infringement of competition law (“draft Directive”). The proposal seeks to regulate-“optimise” in the language of the Commission-the interaction of public and private enforcement in the European Union. At the same time, the proposals seek to ensure that victims of anticompetitive conduct can obtain full compensation for the violation of EU competition law in the courts of the Member States.

The draft Directive is the result of a decade-long debate about the role private claimants should play in the enforcement of EU and national competition rules. It comes in the wake of the seminal Courage and Manfredi rulings that established a right to compensation for the infringement of EU competition rules, and proceedings in the European and national courts where parties sought access to leniency related material to support such damages claims.

The draft Directive suggests, among other things, the judicially controlled disclosure of evidence in competition litigation to facilitate private antitrust enforcement. The revelation of documents in competition law proceedings is likely to be controversial in many Member States because ordering the defendant to release substantial and potentially damaging material is an alien concept in most EU civil procedure laws. It is often feared that the discovery of documents in the possession of the respective oth…

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