Disclosure rules of the Antitrust Damages Directive: finding the balance between public and private enforcement

Abstract

The paper investigates to what extent the principles of private and public enforcement are adhered to in antitrust damages actions. The Antitrust Damages Directive eliminated the uncertainty created in the wake of the Pfleiderer judgment and reasonably limited national judges’ scope of discretion. Competition authorities tend to rely very heavily on leniency procedures so paradoxically it is in the claimants’ interest to prevent access to and disclosure of leniency documents in follow-on actions. The paper argues that the rules applied for contemporary documents can be regarded as the major weakness of the Directive.