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Competition Law

Analysis - debate - current awareness

18 JAN 2012

Protecting confidentiality of leniency applications

On 18 January 2012, the local court of Bonn dismissed a cartel victim's request for access to self-incriminating documents voluntarily submitted to the Bundeskartellamt, the German Federal Cartel Office, as part of leniency applications submitted by members of a paper cartel. The court's decision is final and not appealable.
In 2008, the Bundeskartellamt imposed fines totalling €62m on manufacturers of decor paper for their involvement in price-fixing and capacity closure. Pfleiderer, the cartelists' customer, requested access to the Bundeskartellamt's files to prepare its damages action against the cartelists but the Bundeskartellamt dismissed the request in order to maintain the attractiveness of its leniency programme to potential whistleblowers.
Pfleiderer appealed the decision before the local court of Bonn, which referred the matter to the Court of Justice of the European Union (CJEU) for an opinion. The CJEU held that, in the absence of binding EU rules on the subject, such disclosure is not prohibited. It declined to specify what category of documents submitted by whistleblowers may be disclosed, leaving it to national courts to balance the victims' right to an effective remedy against the need to protect leniency applications from disclosure in the interest of effective cartel prosecution.
Undertaking this balancing act, the local court of Bonn confirmed the Bundeskartellamt's decision on the basis that the disclosure of data submitted for the purpose of leniency applications would jeopardise the purpose of the investigation, although it also stated that other information contained in the authorities' files may have to be disclosed to interested third parties.
These issues have also prompted legislative intervention at EU and national levels: for example, the Commission intends to adopt similar legislation (whether in the form of soft law such as notices, which are not binding on national courts, or hard law) to prevent divergent, case-by-case decisions of national competition authorities on the extent to which, if any, leniency application submissions should be protected against disclosure.

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