Antitrust Law Daily Wrap Up, ANTITRUST—EUCtJust: European Court of Justice Rejects National Competition Law That Denies Access to Documents Without Consent of Parties, (Jun 6, 2013)

By Jeffrey May, J.D.

National competition laws of European Union member states should not deny third parties access to documents concerning judicial proceedings against cartelists, simply because the cartelists have not consented to disclosure, according to a judgment issued today by the Court of Justice (Bundeswettbewerbsbehorde v. Donau Chemie AG, June 6, 2013).

The case involves a request for documents made to the Austrian Cartel Court by Verband Druck & Medientechnik, a trade association representing companies in the printing sector. The association was seeking access to files relating to judicial proceedings between the Bundeswettbewerbsbehorde (Austrian Federal Competition Authority) and chemical companies that had been found to have engaged in cartel activity.

The purpose of the application was to gather evidence to assess the nature and amount of the potential loss suffered by the association’s members due to the antitrust violations of the chemical companies and to determine whether it was appropriate to bring an action for damages.

Austrian law allowed third-party access to such documents only with the consent of the parties. The parties refused. The Austrian court stayed the proceedings and sought a preliminary ruling on the issue from the Court of Justice.

The Court of Justice noted that it was up to the individual EU member states to establish procedural rules governing actions for damages arising from infringement of the competition rules. However, those rules had to comply with EU law and, in the area of competition law, could not jeopardize the effective application of Articles 101 and 102 of the Treaty on the functioning of the European Union (TFEU).

A rigid rule that either provides for absolute refusal to grant access to the documents in question or for granting access to those documents as matter of course is liable to undermine the effective application of Article 101 TFEU and the rights that provision confers on individuals, the court ruled. National courts and tribunals must weigh such requests for access to documents, including documents made available under a leniency program, on a case-by-case basis. Moreover, “national law must not be developed in such a way as to preclude any possibility for the national courts to conduct that weighing-up on a case-by-case basis,” according to the court.

It was noted, however, that the risk that a document might undermine the public interest relating to the effectiveness of a national leniency program could justify the non-disclosure of that document.

The case is C-536/11.

Companies: Donau Chemie AG; Verband Druck & Medientechnik

Cases: Antitrust