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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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