In Search of Compensation for Cartel Harm: The Weighing Up between the Access to Information and the Public Enforcement Effectiveness

Abstract

Access to leniency documentation and information is one of the main procedural issues related to follow-on private enforcement actions. It has rapidly evolved in the last years, marked by cases like Pfleiderer and Donau Chemie and consolidated with the adoption of the Directive on antitrust damages actions (the “Directive”) and its upcoming implementation.This paper aims to present the collision between the public interest in having an efficient public enforcement system, and in particular an effective national leniency programme, and the interest of protecting the effectiveness of the right to full compensation for damages through private enforcement, all in the context of national damages actions. It will be argued that the weighing of those interests was somewhat underpinned by legal uncertainty, because the case law never provided specific criteria for the conduct of the weighing exercise, nor did it designate any specific category of leniency documentation that should be excluded from the right of access to documentation of the private claimants.Against this background, this paper examines first the legal context by designating both the advantages inherent to follow-on litigation and the relevant obstacles (see Section II). Next, the paper presents the specific views on the issue of disclosure of leniency documentation of some member states (see Section III, subsection 1). Then, in the light of the necessity of having more legal certainty in the process of application of the weighing exercise, the positions of the Advocates General in the Pfleiderer and Donau Chemie cases are examined (see Section III, subsection 2). The paper further scrutinizes the colliding interests that need to be weighted by the national courts (see Section III, subsection 3.1) and the practical consequences of the weighing exercise as established by the case law (see Section III, subsection 3.2). It then explores a rather specific situation where the legislator deprives the national court from applying the weighing exercise (see Section III, subsection 4). Finally, the paper puts forward the perception that the new Directive introduces the long awaited legal certainty through establishment of criteria that need to be taken into account for the weighing exercise and exceptional protection for certain leniency documentation and information (see Section III, subsection 5).