Introduction

The European Commission has consistently taken the position that applications for leniency from suspected cartel participants should not be disclosed to prospective claimants wishing to bring follow-on damages claims. A recent decision by the Court of Justice of the European Union (CJEU) may, however, make it easier for prospective claimants to obtain leniency statements and related materials that are submitted to the national competition authorities of the EU Member States. (Pfleiderer AG v Bundeskartellamt C-360/09 14 June 2011).

The CJEU decision increases the risk of private damages litigants having access to incriminating documents, which could undermine the efficacy of leniency programmes.