On 12 October 2011, the Vienna Higher Regional Court sitting as Cartel Court (the Cartel Court) referred a case on the right of access to a cartel file to the Court of Justice of the European Union (ECJ). The Cartel Court is seeking guidance as to whether an Austrian law, which sets out a strict ban on access to cartel files unless all parties to the cartel procedure have consented to such access, is in line with EU law, particularly in light of the ECJ's recent judgment in the Pfleiderer case (see VBB on Competition Law, Volume 2011, No. 6, available at www.vbb.com).
In preparation of a damages claim following an infringement decision adopted by the Cartel Court against companies active in the wholesale trade for printing chemicals (see VBB on Competition Law, Volume 2010, No. 4), an association representing companies in the printing sector applied for access to the investigation file. However, according to Section 39 (2) of the Austrian Cartel Act, those persons who have not been party to the cartel procedure are not entitled to get access to the file, unless the parties to the cartel give their consent (in the case at hand, all cartelists refused to give their consent). This rule differs from the Austrian civil and criminal procedural law regimes which allow courts to grant access to the file following a balancing of opposing interests.
In Pfleiderer, the ECJ held that it should be left to national courts to decide, on a case-by-case basis, which of the interests prevail according to the specific circumstances of the case. It also stated that, when deciding on an application for access to documents submitted under a leniency programme, it is necessary to ensure that the applicable national rules are not less favourable than those governing similar domestic claims.
Questioning the conformity of Section 39 (2) of the Austrian Cartel Act with EU law, the Cartel Court asked the ECJ for a preliminary ruling on whether EU law, particularly in the light of the Pfleiderer judgment, precludes a provision of national competition law which, including in proceedings involving the application of EU competition law, subjects third parties' access to cartel files to the unanimous consent of the parties to the proceedings, without any possibility for the court to weigh, on a case-by-case basis, the interests protected by EU law with a view to determining the conditions under which access to the file is to be permitted or not.
If the ECJ answers the above question in the negative, the Cartel Court in addition asks whether EU law precludes such a national provision where comparable national provisions applicable to other types of proceedings, in particular contentious and non-contentious civil and criminal proceedings, allow access to files, even without the consent of the parties, provided that the third party applicant shows that he has a legal interest in obtaining access to the file and that such access is not precluded by overriding private or public interests.
This latest preliminary reference proceeding will give the ECJ the opportunity to provide further guidance on the question of access to cartel files and leniency documents. In particular, it will be interesting to see whether the ECJ will explicitly state that EU law requires a balancing of interests on a case-by-case basis or whether it permits a national rule providing for an outright ban on access to cartel files and leniency documents. This case may also have implications for the ongoing reform of the German Act against Restraints of Competition.
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