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There is currently much discussion and debate about access to documents in the context of cartel investigations, particularly leniency documents: how should courts and competition authorities balance the public enforcement goal (i.e. maintain the attractiveness and integrity of leniency programmes) with the private enforcement goal (i.e. facilitate access to documents so that claimants are encouraged to bring proceedings)?
The CJEU's Pfleiderer decision prompted more questions than provided answers and it has spawned further references from national courts seeking guidance on whether national rules on disclosure are compatible with EU law. For example, the Austrian Cartel Court has asked the CJEU to rule on whether Austrian legislation which precludes third party access to the authority's file without prior consent of all parties to the proceedings, is compatible with EU law.
There has also been extensive coverage of the General Court's decision in the CDC Hydrogen Peroxide case, which concerned access to documents via the "Transparency Regulation" (Regulation 1049/2001). This decision does not, in my view, impact or shed light on the way in which the balancing exercise identified in Pfleiderer should be carried out. Rather, this was a case in which the European Commission badly misapplied the exceptions to disclosure.
I want to draw attention to two recent decisions on access to documents not by third parties, but by competition authorities.
The first concerns the dairy cartel investigation in the UK. Supermarket chain Tesco was fined £10.43 million by the Office of Fair Trading (OFT) for engaging in price fixing. Tesco appealed to the Competition Appeal Tribunal (CAT) and in the context of the appeal, the OFT sought disclosure of witness statements gathered by Tesco's lawyers during the administrative investigation which had been referred to in letters sent by Tesco to the OFT.
The CAT this week refused to order disclosure, rejecting an argument by the OFT that competition investigations were not adversarial and therefore litigation privilege did not apply: "given the seriousness of the allegations and the potential consequences, a fair procedure included the right to gather evidence and, as a corollary, litigation privilege applied". This is good news for those who may find themselves under investigation in the UK (if there can be any good news in such circumstances). It is, however, worth noting that the CAT took account of the status of the investigation at the time the statements were taken, i.e. they were taken when the investigation was "sufficiently adversarial". Therefore, it canot be taken for granted that all statements, particularly those taken very early on, will be protected. It is also a lesson in caution when referring to documents in correspondence.
The second case is an abuse of dominance case, but the principles about access to documents will apply in cartel cases. The General Court has recently upheld the right of the European Commission to seek information from Slovak Telekom relating to a period before Solvakia became an EU Member State. The Court held that the Commission may request information from an undertaking relating to a period during which the EU competition rules did not apply to it, if the information is considered necessary for the detection of a possible infringement of the rules from the point at which they became applicable.