The CJEU published on 6 June 2013 its long-awaited judgment in Donau Chemie. This is the first case after Pfleiderer in which the CJEU looks at the issue of access to cartel case files, including leniency documents. In yesterday’s judgment, the CJEU recalled all the principles of Pfleiderer but did little to clarify them and provide further guidance.
The facts of the case are as follows. After a leniency application, the Austrian Competition Authority brought a case before the Cartel Court of Vienna concerning a cartel of wholesalers of printing materials. The Cartel Court found that Article 101 was infringed and imposed fines. One year later, an industry association considered filing an action for private damages against the cartelists and requested access to the file of the Cartel Court. However, according to Austrian cartel law, access to the case file can only be given with the consent of all the parties to the proceedings. The parties can refuse to give such consent, without necessarily giving any reasons. The Cartel Court sent a preliminary question to the CJEU asking whether this provision is in line with EU law.
In the Donau Chemie judgment, the CJEU reminded the principles of Courage and Crehan. It stated that it is for the Member States to establish procedural rules concerning competition damages claims and highlighted that these rules should not make it practically impossible or excessively difficult to claim competition damages, thereby jeopardising the effectiveness of the very right to private enforcement (para. 27). By adopting the traditional Courage and Crehan test, the CJEU disagreed with AG Jääaskinen who proposed a revision of this test in the light of Article 47 of the Charter of Fundamental Human Rights and Article 19(1) TEU. According to the AG, it does not suffice that procedural rules do not render damage claims “practically impossible or excessively difficult”, but they must also ensure that such claims can be made in an “accessible, prompt and reasonably cost effective” way (para. 47 of the Opinion).
Against this backdrop, the CJEU looked at the specific provision in Austrian law and concluded that this rule does jeopardise the effectiveness of the right to private enforcement of competition rules (para. 39). The CJEU insisted that “any request for access to the [cartel file] must be assessed on a case-by-case basis [by the national courts], taking into account all the relevant factors of the case” (para. 43). The CJEU also dismissed the Austrian government’s point that broad access to the cartel file could undermine leniency programmes: “[g]iven the importance of the actions for damages brought before national courts in ensuring the maintenance of effective competition in the EU… the argument that there is a risk that access to evidence contained in a file in competition proceedings… may undermine the effectiveness of a leniency programme… cannot justify a refusal to grant access to that evidence” (para. 46).
To conclude, Donau Chemie reiterated Courage and Crehan’s and Pfleiderer’s basic principles but did not take any step further to: (i) clarify the principle of effectiveness in the light of the Charter and the TEU; nor to (ii) elaborate on the criteria for the case-by-case assessment. Hopefully, the Commission’s proposed legislation (forthcoming by the end of this month) will shed more light on both these issues.