German Court Protects the Confidentiality of Leniency Submissions

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In the wake of the seminal European Court of Justice (ECJ) ruling in case C-360/09 - Pfleiderer AG v Bundeskartellamt, Amtsgericht Bonn (Bonn local court), in a decision rendered on 18 January 2012 (case 51 Gs 53/09), has refused to give a damages claimant access to leniency submissions held by the German Federal Cartel Office (FCO).  Although strongly welcomed by the FCO, the decision is a blow to potential damages claimants in Germany, especially as it is not open to appeal.

Despite the fact that damages claimants can rely on a competition authority’s decision as evidence of an antitrust infringement, they also need to prove causation and level of pecuniary damage in a damages claim. It is precisely to prove these latter two limbs of a damages claim that access to leniency documents is sought.

This is the first time that the relevant test laid down by the ECJ in Pfleiderer for deciding whether to divulge leniency submissions to damages claimants in a cartel case has been applied by a national court.  The test propounded by the ECJ is that a national court must exercise its discretion to determine—on a case-by-case basis—whether leniency documents should be disclosed to damages claimants on the basis of their own national law, balanced with the interests protected by EU law.

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