The Damages Directive, Donau and Pfleiderer

The final text of the Council and Parliament Damages Directive protects corporate leniency statements and settlement submissions. There are two small caveats.

First, national judges have the right to verify that corporate leniency statements are in fact that, and are not concealing other information.

Second, settlement submissions that the parties subsequently withdraw are potentially accessible to claimants.

These caveats are minor, however, and unlikely to have any real impact in practice. No settlement submission has ever been withdrawn, and it’s not entirely clear what other information could be concealed in a corporate leniency statement.

Of more interest is the relationship between the Directive and the Court of Justice’s rulings in Pfleiderer and Donau Chemie.

At paragraph 23 of Pfleiderer, the Court indicated that:

Accordingly, even if the guidelines set out by the Commission may have some effect on the practice of the national competition authorities, it is, *in the absence of binding regulation under European Union law on the subject*, for Member States to establish and apply national rules on the right of access, by persons adversely affected by a cartel, to documents relating to leniency procedures. (emphasis added

Similarly at paragraph 25 of Donau Chemie:

In the absence of EU rules governing the matter*, it is for the domestic legal system of each Member State to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law.(emphasis added

Some have questioned whether the absolute protection in the directive is consistent with the Court of Justice’s rulings that judges must make an assessment on a case by case basis. I think it’s fairly clear that it is, for two reasons.First, and most practically, both rulings explicitly referred to the Court setting out rules in those cases in the absence of Community law on the subject. This strongly suggests that if the Community legislature were to set out rules, then the Court would give those deference even if they deviated from the Court’s rulings in Donau and Pfleiderer. The rulings, implicitly, do not set out fundamental rights, but merely the Court’s own balancing of interests in the absence of, and subject to, legislative guidance.

Secondly, the Court required that a national judge carry out a balancing exercise between the various interests at issue – in particular the interest in protecting effective leniency systems and the interest of victims of anti-competitive behaviour to claim damages.

The Directive explicitly carries out this balancing exercise in making clear that pre-existing documents – even if they were submitted to the Commission in the context of a leniency submission – remain accessible to victims. There is no leniency shield for such pre-existing documents. However documents created solely for the purpose of leniency applications or settlement submissions – and which would therefore never have been created if a leniency/settlement system were not in place – are shielded from disclosure.

This is not a case by case balance, but a legislative balance looking at the competition enforcement system as a whole. There is nothing in the Court’s rulings to suggest that such a balance is problematic.

Quite the opposite, given that in its recent rulings in relation to access to the Commission’s file under Regulation 1049/2001, the Court has put great weight on the importance of public enforcement, and on the risks to enforcement of widespread disclosure of documents on the Commission’s file. It is hard to think of a category of document the disclosure of which would lead to more damage to enforcement than leniency statements.

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