The “Discoverability” of Leniency Documents and the Proposed Directive on Damages Actions for Antitrust Infringements

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Marc Abenhaim, Kristina Nordlander, Feb 26, 2014

Since the European Commission initiated its first leniency program in 1996, such programs have become increasingly popular throughout the European Union, to the point that “the overwhelming majority of the national competition authorities in the 27 Member States [now] operate some form of leniency programme.”

After almost two decades of success, however, the level of participation seems to have slightly decreased. While a variety of factors may explain this trend, the most worrying one perhaps relates to the increased disclosure risks associated with private damages litigation.

As a matter of EU law, “any individual has the right to claim damages for loss caused to him by conduct which is liable to restrict or distort competition.” In this context, access to evidence is often very valuable for establishing the wrongful act (e.g. the participation in the cartel), the prejudice, and the causal link. This is particularly the case for leniency documents, which are voluntarily produced or submitted by cartel participants to a competition authority with a view to obtaining immunity from fines or a fine reduction. Indeed, a leniency application must generally contain an admission of guilt and a thorough description (and evidence) of the cartel, its scope, duration, functioning, etc. It is therefore not surprising that over the past few years, litigants have repeatedly attempted to access leniency documents, relying either on national law, Regulation 1/2003, or the Transparency Regulation.

Such attempts and the corresponding risks to leniency applicants have led the Court of Justice of the European Union (the “Court”) to recognize in Pfleiderer that the effectiveness of leniency programs could be compromised if leniency documents were to be disclosed. Unfortunately, neither Pfleiderer nor the subsequent case law really clarified whether, as a matter of EU law, leniency documents should be disclosed or protected. Ever since, the discoverability of leniency documents and the appropriate balance between the victims’ right to compensation under EU law and the attractiveness of leniency programs have raised considerable controversy.