The clandestine nature of cartels typically results in an information asymmetry for claimants. CDC therefore pursues innovative strategies to obtain compulsory information for the purpose of enforcing complex antitrust claims. CDC has for example developed an effective alternative to the attempt to obtain specific information in the context of judicial proceedings in form of its Leniency Plus+ scheme. In addition, CDC has been involved in several landmark cases before the EU Courts in Luxembourg.
Access under the Transparency Regulation 1049/2001
CDC successfully obtained a copy of the statement of contents of the Commission’s file in Case COMP/F/38.620 – Hydrogen peroxide and perborate under the EU Transparency Regulation 1049/2001.
Following the decision of 3 May 2006 in Case COMP/38.620 in the EEA-wide hydrogen peroxide cartel CDC sought from the Commission on the basis of Regulation 1049/2001 full access to the statement of contents of the administrative file. After the final rejection of the Commission to provide a readable version of the statement of contents, CDC lodged an action for annulment against the Commission decision before the EU General Court on 6 October 2008. The EU General Court followed the argumentation of CDC HP and rendered a favourable judgment on 15 December 2011 which was not appealed by the Commission.
The EU General Court confirmed CDC HP’s position that even though actions for damages could cause high costs, and even if the actions are subsequently dismissed as unfounded, the interest of a company which took part in a cartel in avoiding such actions cannot be regarded as a commercial interest which could justify the non-disclosure of the requested document under the Transparency Regulation. In any event, avoiding damage claims does not constitute an interest of cartel members deserving of protection.
Publication of a detailed non-confidential version of a cartel decision
In another landmark case, concerning the power of the Commission to publish a new, significantly more detailed non-confidential version of a cartel decision, CDC intervened on the side of the European Commission (T-345/12). In its judgment of 28 January 2015 the EU General Court confirmed the power of the Commission to publish meaningful and detailed decisions in hardcore cartel cases which allow potential victims to identify whether they are affected by a competition infringement. The judgment is currently under further appeal before the European Court of Justice.
On 21 July 2016, Advocate General (AG) Maciej Szpunar published a landmark opinion in advance of the impending Judgment of the Court of Justice. The opinion gives clear guidance on the alleged conflict between protection of the rights of leniency applicants on the one hand and on the other hand the right of access to information of the public in general and persons potentially damaged by the reported anticompetitive conduct in particular.
- Action brought on 3 August 2012 in case T-345/12 (publication of an extended Commission decision), Akzo Nobel and Others v Commission.
- Order of the President of the General Court granting interim measures in case T-345/12 R, Akzo Nobel and Others v Commission.
- Judgment of the EU General Court (Third Chamber), 28 January 2015 – Akzo Nobel NV and Others v European Commission.
- CDC press release in relation to AG Szpunar’s landmark opinion.