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 files closed.
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 evidence.
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 the file.
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 them.
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