In an order of 26 November 2013 that was recently published, the
German Higher Regional Court of Hamm (the "Higher Regional
Court") ruled that a leniency application submitted by a
cartelist and the confidential version of a cartel decision adopted
by the European Commission included in a criminal investigation
file may be disclosed by the public prosecutor to a civil court
asked to rule on a damage claim against members of the cartel.
In June 2013, Düsseldorf's public prosecutor had
decided to allow the Regional Court of Berlin (the "Berlin
Court") access to a criminal investigation file that contained
a leniency application and parts of the confidential version of the
European Commission's 2007 decision to fine the members of an
elevator and escalator cartel a total of more than € 992
million. The Berlin Court was reviewing a damage claim against the
cartelists. The Düsseldorf's public prosecutor had
investigated criminal charges against several individuals employed
by the cartelists concerning their alleged participation in
bid-rigging and ran its criminal investigation in parallel with the
Commission's competition investigation against the cartelists.
The criminal investigations were eventually terminated and the
In its request, the Berlin Court argued that access to the
criminal file was necessary because in the proceedings under its
review the cartelists defended themselves by arguing that the
plaintiffs had not demonstrated which individual employees had
acted in each project allegedly causing damage to the plaintiffs.
The plaintiffs have thereupon filed a motion with the court to take
The Higher Regional Court pointed to the difference between
requests for access to documents filed by private parties (as in
the Pfleiderer case, see VBB on Competition Law Volume
2012, No. 2, available at
www.vbb.com) and requests filed by a court. Under the German
law of criminal procedure it is significantly easier for courts to
get access to criminal investigation files because it is assumed
that, prior to filing its request, the requesting court has
carefully assessed the necessity for the disclosure taking into
account the particular circumstances of the individual case. This
necessity test has to be made by the requesting court only, and not
by the public prosecutor, which is why the requesting court is
solely responsible for the permissibility of the transmission of
Examining whether the Düsseldorf's public prosecutor
should nevertheless have denied the Berlin court's request, as
argued by the cartelists and the German Federal Cartel Office, the
Higher Regional Court held that the prosecutor had been right to
accept the request because a leniency application and the
confidential version of the European Commission's decision are
not data of an "unusual kind". An argument based on the
cartelists' rights to protection of their business secrets was
also rejected because the data contained in the criminal
investigation file were at least ten years old and could no longer
be regarded sensitive from an economic point of view. Finally, the
Higher Regional Court held that the abstract possibility of future
cartelists refraining from co-operating with competition
authorities would not justify a denial of the Berlin Court's
request as such denial must be based on specific reasons in an
individual case rather than on general considerations as to the
effectiveness of cartel prosecution.
It follows from the order of the Higher Regional Court that it
is now the responsibility of the Berlin Court to determine to what
extent it wants to use the information contained in the criminal
investigation file. If the Court intends to use the information
contained in the file for its decision, the data will also have to
be made available to the plaintiffs. If the data are not used by
the court for its decision, they do not become part of the
court's case file and the plaintiffs will not have access to
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