On 14 June 2011 the European Court of Justice ("ECJ") gave its ruling in the Pfleiderer case (C-360/09). Pfleiderer concerned a so-called preliminary question referred to the ECJ by the Amstgericht Bonn in which the latter was seeking clarification on whether EU law prohibits the disclosure of leniency applications to third parties which have suffered damages resulting from a breach of competition law. The Amstgericht Bonn was adjudicating a matter in which Pfleiderer AG, a customer of manufacturers of décor paper which the German Competition Authority (Bundeskartellamt, "BKA") had in 2008 fined EUR 62 million for participation in a cartel, was seeking access to the BKA's file for the purposes of submitting a civil action for damages. The BKA granted access to certain documents but refused to grant access to documents relating to leniency applications made in the case. Pfleiderer AG appealed to the Amstgericht Bonn. In response to the Amstgericht's preliminary question, the ECJ stated that while the disclosure of leniency applications was not prohibited under EU law, any national court being asked to rule on the question would have to weigh and balance the interest of the aggrieved parties (e.g. customers seeking to file claims for damages) against the necessity of effective cartel prosecution of which leniency programmes form a significant tool. It is to be left up to the national courts, said the ECJ, to decide, on the basis of national law, the conditions under which access to leniency documents can be permitted or refused.

Based on this guidance from the ECJ, the Amstgericht Bonn on 30 January 2012 ruled that in the case before it the threat to the detection and prosecution of competition law infringements justified the refusal to access to the leniency applications. Accordingly, Pfleiderer AG was not granted access to the leniency documents. The significance and effects of this decision extend way beyond the case in question and will reportedly result in a codification of the principle of non-disclosure of leniency documents to third parties in the German Competition Act.

The same issue – access to leniency documents - was dealt with entirely differently by another national court, the High Court of England and Wales (EWHC) on 4 April 2012. The EWHC was adjudicating a matter in which NGET, a customer of producers of gas insulated switchgear deemed by the European Commission in 2007 to have participated in a cartel and having been fined EUR 750 million, was seeking access to certain leniency documents. The EWHC considered that a cartelist had no legitimate expectation that any leniency submissions it made to a competition authority in the course of any investigation would be protected from disclosure but that such disclosure would increase a leniency applicant's exposure to liability compared to a company which has chosen not to submit a leniency application. Moreover, the EWHC stated that although the risk of disclosure may deter companies from applying for leniency this would be a high-risk strategy for a company considering the significant amounts of reduction (let alone full immunity) of a fine available for a company which cooperates with a competition authority. Finally, the EWHC also took into account elements of proportionality i.e. how difficult would it be for the claimant to obtain the requested information from other sources. On balancing these considerations and having reviewed all documents concerned in detail, the EWHC decided to allow disclosure of certain leniency documents to NGET.

On 22 May 2012, the EU General Court ("GC") in EnWB (T-344/08) annulled a European Commission decision refusing access to leniency documents related to the gas insulated switchgear case (as referred to above). The GC found that the Commission had misapplied the exceptions laid down in Articles 4(2) and 4(3) of Regulation 1049/2001 (the so-called transparency regulation based on which individuals have a very broad right to be granted access to documents of EU institutions unless certain narrowly interpreted exceptions apply). Because the Commission had not undertaken a concrete and individual examination of each document requested in order to determine whether any of the exceptions would apply, the GC annulled the Commission's decision to refuse access to the leniency documents concerned.

Undoubtedly based on the considerable confusion existing at present as to status of leniency documents when it comes to disclosure requests made in the context of civil actions for damages, the latest contribution to the discussion comes from the European Competition Network ("ECN") which on 23 May 2012 published a resolution of the meeting of the heads of the European Competition Authorities in which it felt the need to "reiterate the importance of appropriate protection of leniency material in the context of civil damages actions following the Pfleiderer judgment". Even though the ECN states that it welcomes the developing of private enforcement of competition rules, particularly by way of damage actions as a complementary too to public enforcement, it stresses that as far as possible under applicable national rules leniency materials should be protected against disclosure to the extent necessary to ensure the effectiveness of leniency programs.

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