Antitrust Alert: Documents Provided in Antitrust Leniency Applications Not Exempt from Disclosure Demands in EU – Part 2

A recent ruling from the EU General Court ("General Court") in EnBW Energie Baden-Württemberg AG v Commission confirms that leniency documents produced under the European Commission's ("Commission") leniency program are not exempt from disclosure in civil actions in the EU. Earlier this year, the European Court of Justice ("ECJ") had ruled in Pfleiderer that leniency documents produced to National Competition Authorities could be disclosed to cartel victims in civil actions for restitution.

These developments may be welcome news for the increasing number of claimants across the EU seeking access to documents filed by leniency applicants, but less welcome to defendants and prospective leniency applicants, who may feel more reluctant to blow the whistle if that puts them at risk of their incriminating evidence becoming available to prospective claimants.

Background

In 2007, the Commission imposed fines totaling EUR 750 million on several companies that had taken part in a cartel relative to gas-insulated switchgear ("GIS").  The GIS cartel came to light after one of the GIS cartel members blew the whistle.

Energie Baden-Wuerttemberg AG ("EnBW"), an alleged victim of the GIS cartel, brought a civil action for damages allegedly suffered as a result of the cartel.  EnBW sought access from the Commission to leniency applications produced to the Commission including by the whistleblower. The Commission refused access on the basis that disclosure would undermine the protection of the leniency applicant's commercial interests, the purpose of its own investigation, the efficacy of its leniency program and the absence of any overriding public interest. EnBW appealed the Commission's decision to the General Court.

General Court judgment

On 22 May 2012, the General Court annulled the Commission's refusal to disclose the leniency documents in its possession. In adopting its ruling, the General Court observed: 

• EU transparency law confers on the public a wide right of access to documents of the European Institutions, including the Commission.
• This right of access is subject to certain exceptions.
• However, these exceptions must be interpreted and applied strictly. To justify refusal of access to a document, the Commission must explain how access to that document could specifically and actually undermine the interest protected by each exception. 

Applying these principles, the General Court considered that the Commission had not established to the appropriate legal standard the existence of exceptional circumstances in order to dispense with a request for disclosure.

Practical implications

In the earlier Pfleiderer case, while the ECJ ruled that leniency documents produced to National Competition Authorities could be disclosed to cartel victims in civil actions for restitution, disclosure would be subject to provisions of national law.  The national courts must assess, on a case-by-case basis, the relative merits of disclosing or protecting leniency information against the right of cartel victims to claim compensation (see our previous Alert, "Leniency Documents Not Exempt from Disclosure Demands in EU").  

In EnBW, the General Court held that the disclosure of leniency documents produced to the Commission pursuant to its leniency program ought to be decided in the same way.

The implications of the Pfleiderer judgment now has been tested by the High Court in England in National Grid v ABB.  National Grid Electricity Transmission had brought a follow-on action for damages for losses allegedly suffered as a result of the GIS cartel and applied for disclosure of documents that included leniency material produced to the Commission. In a filing the Commission did not oppose disclosure but underscored the harm that could be done to its leniency program if the national courts started ordering disclosure.  After a careful balancing of the Pfleiderer factors, the High Court ordered partial disclosure of the documents that had been produced to the Commission under its leniency program.

These recent developments demonstrate that, while there is no blanket bar on disclosure, there is also no presumption in favor of disclosure.  Each case will be considered on its merits.  Even where disclosure is ordered, it may be partial disclosure only.

Conclusion

It is clear that there is no automatic protection from disclosure for leniency documents.  As a result, in civil actions for damages we are very likely to see an increase in requests for disclosure of leniency documents produced to the competition authorities. This would not least be on the basis that there is everything to be gained and nothing to be lost by such applications.  For putative leniency applicants, the associated risks of disclosure may make them less inclined to apply for leniency.  Any company seeking leniency ought to consider what information to include in its application and how it might be used by any future damages claimant.

Lawyer Contacts
For more information, please contact your principal Jones Day representative or either of the lawyers listed below. 

Frances Murphy
London
+44.20.7039.5959
fmurphy@jonesday.com

Francesco Liberatore
London
+44.20.7039.5221
fliberatore@jonesday.com

Jones Day prepares summaries of significant antitrust enforcement, litigation, and policy events as a service to clients and interested readers, to provide timely insight on antitrust and competition law developments relevant to business, but not as legal advice on any specific matter.  Please visit our Publication Request form to add your name to our distribution list.