On 7 February 2013, EU Advocate General Jääskinen ("AG Jääskinen") issued his Opinion on two questions referred to the Court of Justice of the European Union ("ECJ") for a preliminary ruling by the Austrian Cartel Court, concerning third party applicant access to cartel documents kept by the Austrian Cartel Court for the purposes of private enforcement claims.

In March 2010, the Austrian Cartel Court, in proceedings brought by the Federal Competition Authority based on leniency applications, had fined several undertakings in the market for the wholesale distribution of printing chemicals for their participation in an illegal cartel, contrary to Article 101 TFEU. This decision was confirmed by the Austrian Supreme Court in October 2010. Verband Druck & Medientechnik ("VD&M"), an association representing the interests of undertakings in the printing sector, subsequently sought to obtain access to the cartel documents, on the grounds that it had a legitimate interest in establishing the nature and importance of the harm suffered by its members as a result of the illegal activities of the cartel, and with a view to preparing an action against the cartelists.

All parties to the cartel proceedings, with the exception of the Federal Competition Authority, refused consent to access by VD&M. The Federal Competition Authority was prepared to agree to provide the applicant with access to the Austrian Cartel Court ruling, but no more. Under Austrian law, third parties are precluded from having access to court files of public law competition proceedings absent the consent of the parties to the proceedings. As a consequence, neither the file nor the Austrian Cartel Court ruling could be turned over to VD&M to assist in the pursuit of damages actions against the defendants, or for any other purpose.

The Austrian Cartel Court questioned whether Austrian law was compatible with the principle of effectiveness and the obligation on Member States to allow individuals to bring actions for damages for breach of competition law. It also expressed doubts on the compatibility of Austrian law with the principle of non-discrimination, when the consent of all parties was not required in ordinary national civil and criminal cases with respect to files held by the courts. The Austrian Cartel Court therefore referred two questions to the ECJ for a preliminary ruling on the compatibility of Austrian law with EU law.

In his Opinion, AG Jääskinen first discussed the principle of equivalence, which requires that national rules apply, without distinction, to actions based on infringements of EU law as it does to those based on infringements of national law having a similar purpose and cause of action. According to AG Jääskinen, this principle cannot, however, be interpreted as requiring a Member State to extend its most favourable rules in any area to all actions brought in a certain area of law. Here the ban on third party access to cartel court files applies to both cases based on EU competition law and Austrian competition law. Such proceedings are not, in AG Jääskinen's view, comparable to either ordinary civil or criminal procedures given that the latter are not concerned with the protection of leniency programmes or other specific features of public law proceedings in the context of enforcing competition policy. Therefore, AG Jääskinen opined that the principle of equivalence under EU law does not preclude a national provision like the Austrian law at hand.

Next, AG Jääskinen examined the question seeking guidance on the compatibility with EU law of a Member State law imposing a ban on third party access to documents which have been placed before a competition jurisdiction, absent consent of the parties to those public law competition proceedings. Following the ECJ's judgment in Pfleiderer (see VBB on Competition Law, Volume 2011, No. 6, available at www.vbb.com), AG Jääskinen recalled that in consideration of an application for access to documents in the context of a national leniency programme, it was necessary to weigh (i) the protection of information provided voluntarily by an applicant for leniency (the effectiveness of which and the effective application of Article 101/102 TFEU can be compromised if leniency documents are disclosed to persons wishing to bring an action for damages); and (ii) the need to ensure that applicable national rules are not less favourable than those governing similar domestic claims and do not operate in such a way as to make it practically impossible or excessively difficult to obtain compensation for losses incurred as a result of a competition law breach. This weighing exercise can only be conducted on a case-by-case basis.

AG Jääskinen reiterated that EU law obliges Member States to ensure that national legislation does not undermine the right of effective judicial protection and those concerned cannot be prevented from asserting their rights before the national courts. The question therefore is whether the Austrian ban on access to Austrian Cartel Court files, absent the consent of all parties, carries such an effect. In light of previous EU case law, AG Jääskinen considered that an absolute ban on access to the court files held by the Austrian Cartel Court absent the consent of the parties, was a disproportionate impediment to the right of access to a court as guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union, and particularly when the judgments of the Austrian Cartel Court are not made available to the public.

Furthermore, AG Jääskinen stated that what is required, under the imperative of effet utile, is for national judges deciding on third party access to the court file to conduct a weighing exercise of the kind foreshadowed by Pfleiderer. The national legislator may regulate the factors to be taken into account in such a balancing exercise but not preclude it from taking place, except for the information provided by undertakings benefiting from leniency. Therefore, in conducting its assessment, the Austrian Cartel Court is bound to give due consideration to alternative means of gathering evidence that are available under Austrian law (e.g. procedural rules on disclosure of documents within the context of civil proceedings or rules regulating access to administrative documents of the Federal Competition Authority). Finally, AG Jääskinen found that there must be some room for balancing the public interest relating to effective implementation of competition rules against private interests of the victims of infringements of the same rules.

For all the above reasons, AG Jääskinen advised the ECJ to conclude that the principle of effective judicial protection precludes a provision of national competition law to prohibit access to the files of a competition jurisdiction to third parties wishing to bring civil damages claims against the cartel participants, absent the consent of the latter.

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