On 18 January 2012, the Local Court of Bonn (the Bonn Court) upheld the decision of the German Federal Cartel Office (FCO) refusing Pfleiderer AG, a manufacturer of wood products and laminate flooring (and also a customer of all three participants of a former decor paper cartel) unlimited access to the FCO's corresponding cartel file. Pfleiderer had requested additional information with a view to preparing a follow-up action for damages.
In 2008, the FCO fined the three largest European manufacturers of decor paper a total of € 62 million for infringing competition law by engaging in price fixing and reaching agreements on capacity closures (see VBB on Competition Law, Volume 2008, No. 2, available at www.vbb.com). Following that decision, Pfleiderer requested access to the FCO's file. The FCO granted Pfleiderer access only to a non-confidential version of the file which had been cleared of business secrets, internal documents and the leniency application submitted by one of the participants (including the evidence provided by the leniency applicant).
Pfleiderer challenged the FCO's decision before the Bonn Court seeking unlimited access to the file. The Bonn Court referred the matter to the Court of Justice of the European Union (ECJ) and asked whether EU competition law requires that victims of cartels may not, for the purpose of bringing damages claims, be given access to leniency applications and documents voluntarily submitted by leniency applicants to the national competition authority (see VBB on Competition Law, Volume 2011, No. 6). The ECJ held that both the leniency programme and private actions for damages contribute to the deterrent effect of antitrust enforcement. It should therefore be left for national competition authorities and national courts to decide, on a case-by-case basis, which of the interests prevails according to the specific circumstances of the case.
Further to the preliminary ruling of the ECJ, the Bonn Court generally confirmed the FCO's decision. It nevertheless found that Pfleiderer should also have been granted access to the evidence seized during the dawn raids carried out by the FCO since such evidence forms part of the file. The Bonn Court based its decision on its interpretation of Section 406e (2) sentence 2 of the German Code of Criminal Procedure (StPO). Pursuant to Section 406e StPO "access to files may be refused if the purpose of the investigation, also relating to other criminal proceedings, may be jeopardised".
Arguing that this wording implies a wide discretion, the Bonn Court did not assess whether access to the file would jeopardise a concrete other proceeding but found, in more general terms, that access to cartel files would constitute a threat to the effective detection and prosecution of competition law infringements since cartel participants would arguably refrain from applying for leniency if they feared that the documents they voluntarily submitted would possibly be disclosed to third parties seeking to claim damages.
By giving significant weight to the general prosecution of cartels when balancing the interests at stake, the Bonn Court has created a precedent that preserves the attractiveness of leniency applications. Interestingly, the first draft of the German Federal Ministry of Economics for an 8th amendment of the German Act against Restraints of Competition goes even further. The Ministry has proposed to categorically prohibit access to leniency applications and the underlying evidence. For this purpose, it has interpreted the ECJ's preliminary ruling in Pfleiderer as not requesting a national court to weigh up the interests on a case-by-case basis but rather as allowing a Member State to provide for a general rule preventing access to leniency applications and underlying evidence. Interestingly, the ECJ will possibly clarify whether such an understanding is in conformity with EU law in a recent preliminary reference lodged by the Vienna Cartel Court concerning a similar case.
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