Germany: German Court Denies Third-Party Access To Leniency Applications In Court Proceedings

In a judgment of 22 August 2012, the Higher Regional Court of Düsseldorf (“the Court”), referring to the ECJ’s Pfleiderer judgment (see VBB on Competition Law, Volume 2011, No. 6, available at www.vbb.com), clarified that third-party access to leniency applications of cartel participants may be denied in court proceedings.

In 2009, the German Federal Cartel Office (“FCO”) had imposed fines on three coffee roasters for horizontal price fixing (see VBB on Competition Law, Volume 2010, No. 1, available at www.vbb.com). The FCO’s investigation had been initiated by a leniency application of one of the cartelists and additional leniency applications were submitted in the course of the investigation. Eventually, two of the companies involved in the cartel and several individuals who had been fined appealed the FCO’s decisions before the Court. The FCO therefore provided the Court with all its files relating to the proceedings concerned. With a view to preparing a civil action for damages, several retailers, who were customers of the cartelists, subsequently requested access to the court files, including the leniency applications.

These access requests were only partly successful. In particular, the Court granted the applicants access only to the non-confidential versions of the FCO decisions imposing the fines, with all business secrets of the companies and personal data of the individuals concerned redacted. In addition, the applicants were granted access to a list mentioning all pieces of evidence kept in the file. As for the rest, further access was denied.

Pursuant to Section 406e of the German Code of Criminal Procedure (“StPO”) an attorney may inspect the files that are available to the court on behalf of an injured person if a legitimate interest in this regard can be demonstrated and there are no overriding interests worthy of protection. The Court considered the applicants to be injured persons within the meaning of Section 406e StPO. However, their legitimate interests were overridden by other interests, in particular the leniency applicants’ trust in the confidential treatment of their leniency applications and the public interest in the efficient detection of competition law infringements. More particularly, the Court considered that the protection of leniency applicants’ confidence would be incomplete and meaningless if only the competition authority was subject to confidentially requirements but not the Court.

The Court granted the applicants access to both the FCO's decisions that had not been appealed (and were thus final), as well as to those decisions that were under appeal before the Court. The Court indeed considered that the interests of potential civil damage claimants override the presumption of innocence of the appellants, all the more so as the latter only appealed the FCO’s decisions with respect to the level of the fines but did not challenge the substance thereof. Moreover, since appeal proceedings may take several years, injured parties may be deprived of their right to initiate civil actions for damages if they had to wait until the end of the appeal proceedings.

Whilst acknowledging the deterrent effect of civil actions for damages, the Court clarified that access to leniency applications and voluntarily submitted pieces of evidence was not necessary for a successful action for damages. Moreover, the Court may deny access in given cases where granting access would considerably delay the proceedings. In the present case, the Court considered that preparing a non-confidential version of the entire court file, including all pieces of evidence, could take weeks and virtually paralyse the Court during that time. Instead, the Court decided to grant access to a list mentioning all pieces of evidence, on the basis of which the applicants were then entitled to submit a reasoned request for access to specific documents.

After the judgment of the Local Court Bonn of 18 January 2012 (see VBB on Competition Law, Volume 2012, No. 2, available at www.vbb.com), this is the second German judgment dealing specifically with requests by third parties for access to cartel files, though this time during court proceedings. Whilst both courts basically maintain the protection of leniency applicants’ confidence in the secrecy of their leniency applications, at the same time the Court leaves open a backdoor for damage claimants to request access to particular documents that have been submitted together with the leniency application.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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