UK: Disclosure Of Evidence Arising Out Of Cartel Investigations

Last Updated: 4 April 2012
Article by Marc Hansen

What evidence do civil plaintiffs seek?

  1. Enforcement agencies' transcriptions of oral statements
  2. Witness statements taken by enforcement agencies
  3. Documents provided by leniency applicants to agencies
  4. Other documents in the agency files (replies to information requests; inspections documents)
  5. Agency evidence inventory (index; statement of contents)
  6. Provisional findings (e.g., statement of objections)
  7. Confidential final Decision (unredacted – whether business secrets or information provided by leniency applicants)

How do plaintiffs seek disclosure of evidence?

  1. Right of access to file: Damage claimant acting as a complainant in an enforcement proceeding
  2. EU "Transparency" Regulation 1049/2001
  3. Disclosure of NCA file through Member State courts
  4. Disclosure of EU file through Member State courts (discovery in inter partes civil damages litigation)
  5. Damage claimant acting as an intervener before EU Courts (in re appeal of EU Decision)
  6. Disclosure in non-EU courts: in criminal cases, disclosure obtained by defendant, but rendered public
  7. Disclosure in non-EU courts: inter partes damages litigation

The EU Response to Pfleiderer and Issues beyond the European Union

How does increased disclosure impact effective public enforcement?

Pressure points on the Commission

  • EU law on disclosure and transparency is in flux

    • Pfleiderer ruling; Reg. 1049/01 case law
    • Access to file before EC, rights of intervention in European Courts

  • Member States are confronted with similar pressures

    • French civil disclosure ruling in MLDC web-coupons damages litigation (third party order against Autorité de la Concurrence)

  • Different protection of leniency applicant information across the EU – Legal certainty at risk
  • Absence of legal certainty may impact effectiveness of public enforcement
  • ECN cooperation cannot solve the problem alone
  • Forum shopping based on document availability

Other pressure points...

  • Transparency rules being used in an attempt to challenge protection of EC leniency statements and confidential information grounded in other sources of EU law
  • EC caught between confidentiality obligations and disclosure requests

    • Redaction of business secrets & information of leniency applicants
    • Pressure to release information to enable civil cases
    • Balancing of interests is complex and time consuming, e.g.,

      • Bathroom fittings & fixtures decision of 23.6.2010, not yet published
      • Prestressing steel decision of 30.6.2010 published on 13.3.2012
      • Air Cargo decision of 9.11.2010 still to be published
      • Automotive Glass decision of 12.11.2008... three years later!

What are the conflicting but legitimate objectives of the EU Institutions?

1. Openness and transparency in public administration

  • "closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen" (Art. 1 TEU; see also Art. 10 TEU and Art. 15 TFEU)
  • Chef de file: Secretariat-General

2. Protection of business secrets in competition procedures

3. Protection of public enforcement

  • Protection of leniency programs

    • Leniency Notice (§§ 33-34); Letter by DG Competition to NY Eastern District in Air Cargo litigation; EC Amicus Curiae in National Grid UK litigation

  • Protection of settlement submissions

    • Settlement Notice (§§ 35-40)

  • Chef de file: DG Competition

4. Protection of private enforcement

  • T-437/08 CDC, para 77: "actions for damages before the national courts can make a significant contribution to the maintenance of effective competition (Courage) ..."
  • "Action for damages" disclaimer in all EC press releases of cartel decisions
  • Chef de file: DG Competition

Policy objectives must be balanced against reality..

  • What can the EU win in court?

    • Victories

      • C-139/07 Commission v Technische Glaswerke Ilmenau (Reg. 1049/01 in State aid case)
      • Non-EU courts have ruled against disclosure on comity grounds

    • Losses

      • T-437/08 CDC v Commission (Reg. 1049/01 in cartel cases)

    • Uncertain? No presumption, but does not deal with the Substance

      • C-404/10 P-R Commission v Éditions Odile Jacob (Reg. 1049/01; merger)

    • Who carries the water.... Service Juridique

A legislative fix – The balance between public and private enforcement ?

  • Disclosure in inter partes litigation

    • AG Kokott: Pfleiderer put the ball "in the EU legislature's court"
    • Legislative solution to ensure uniform approach:

      • Commission hopes to propose Directive on Civil Actions in 2012
      • Earlier draft shielded from disclosure: corporate statements and settlement submissions, not leniency documents

  • A regulation to clarify how Commission may deal with disclosure claims for EU leniency submissions?
  • Disclosure claims against the EU Institutions:

    • Current reform of Reg. 1049/01

      • In December 2011, the EP voted draft pushing for broader classification of "document" and fewer exceptions to transparency obligations
      • Member States (except Nordics) protective of enforcement interests

    • Access to antitrust files represents only less than 10% of overall applications to the EC under Reg. 1049/01
    • Pfleiderer has helped focus debate and EC demands
    • Compromises needed between Council and MS; Timing uncertain

International arena: Expansive disclosure rulings

  • Increased disclosure of oral statements and interview materials produced by leniency applicants:

    • United Kingdom: in October 2011, OFT published proposed new leniency guidance, including on when OFT can seek waiver of legal privilege on interview notes from internal investigation; Is there ever privilege for internal investigation notes (Tesco case)
    • Australia: in August 2011, Federal court ruled that ACCC cannot rely on public interest immunity to avoid disclosing enforcer's notes from proffer meetings in cartel investigation
    • United States: in 2010 DOJ issued new criminal discovery guidance, leading in 2011 to disclosure of DOJ's proffer notes in LCD investigation

The effects of disclosure on enforcement...

1. Less immunity applications?

  • Increased disclosure risks may affect willingness of immunity applicants to come forward in certain "marginal" jurisdictions to avoid additional disclosure

2. Less effective enforcement?

  • Increased risk of disclosure of proffers could lead applicants to more narrowly circumscribe proffer statements to ensure that these do not reveal more than what will eventually come out in witness testimony

3. A move to witness testimony for the EU?

  • Narrower proffer statements may cause applicants to circumscribe oral statements in the EU, increasing pressure on the EU to request witness testimony in order to get the same level of information as other jurisdictions Di

Disclosure leads to less effective enforcement

4. Less information exchange waivers?

  • Increased disclosure of leniency applicant materials in certain jurisdictions could lead applicants to seek to limit information exchange waivers given to enforcement authorities so as to avoid information flowing to the disclosing jurisdiction, and from there to plaintiffs or other (non-immunity) enforcement jurisdictions

5. Less internal investigations & less immunity applications?

  • Requirement that applicants waive legal privilege over internal investigations notes and interviews could cause companies to limit internal investigations (and less unlawful conduct might be found and reported) or perhaps to segregate investigations (e.g. different packages for the EC and the OFT)

How can agencies respond to these challenges?

  • Agencies must state their position on disclosure to leniency applicants – Certainty and predictability!
  • Agencies should develop tools to allow for limited disclosure where required (e.g., protective orders in criminal proceedings)
  • To protect their enforcement programs, agencies should defend their position on disclosure in court proceedings
  • Where agencies do not prevail, move quickly to seek better legal basis for protecting public enforcement
  • Consider carefully whether to take a case forward, if disclosure will undermine "market perception" of the agency's leniency programme

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions