Access to Documents Cases
The secret nature of cartels typically results in an information asymmetry to the disadvantage of damaged companies. CDC pursues innovative strategies to obtain relevant information for the purpose of enforcing complex antitrust claims. We have for example developed an effective alternative to – often unsuccessful – attempts to obtain specific information through court proceedings, which is our Leniency Plus+ scheme. CDC has also been involved in several landmark cases before the Court of Justice of the European Union which concern accessing information on details of cartel infringements.
Accessing information under Transparency Regulation 1049/2001
CDC was successful in accessing information on the statement of contents of the file in Case COMP/F/38.620 – Hydrogen Peroxide under the EU Transparency Regulation.
Following the decision of 3 May 2006 in Case COMP/38.620 on the Europe-wide Hydrogen Peroxide cartel, CDC sought from the European Commission, on the basis of the Transparency Regulation, full access to the statement of contents of the administrative file. After the rejection of its request, CDC lodged an action against the Commission for annulment before the General Court of the European Union on 6 October 2008.
The Court rendered a favourable judgment on 15 December 2011. It particularly confirmed CDC’s position that the interest of a cartel member in avoiding damage actions against it is not an interest which could justify the non-disclosure of the requested document under the Transparency Regulation. Avoiding damage claims does not constitute an interest of cartel members deserving protection.
Publication of a detailed non-confidential version of a cartel decision
Further landmark decisions of the European courts stem from a request by CDC to the European Commission to disclose confidential parts of its Hydrogen Peroxide cartel decision of 3 May 2006. Following this request, the Commission finally agreed to re-publish a more detailed, non-confidential version of that decision.
The objections raised by two addressees of the decision, Akzo Nobel NV and Evonik Degussa GmbH, against the re-publication were dismissed by the General Court of the European Union. In its judgments of 28 January 2015, the Court confirmed that the envisaged re-publication would reveal information that is capable of facilitating the demonstration of harm suffered by persons which, like CDC, consider themselves to have been adversely affected by the infringement penalised in the decision, as well as the causal link between that infringement and the alleged harm. CDC had intervened on the side of the Commission in the proceedings on the action by Akzo Nobel (Case T-345/12).
While the judgment on Akzo Nobel became binding, the parallel judgment on Evonik Degussa was appealed before the European Court of Justice. On this further appeal, the Advocate General delivered his opinion on 21 July 2016 (Case C-162/15 P). It 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 public’s right of accessing information in general and persons potentially damaged by the reported anticompetitive conduct in particular.
The European Court of Justice, in its judgement of 14 March 2017, finally set aside the judgment on Evonik Degussa for formal reasons (Case C-162/15 P). Apart from this, however, the Court essentially confirms the judgment of the General Court. It particularly points to the fact that an infringement decision by the Commission enables cartel victims to be provided with support during their actions for damages against the infringers. The Court also specifies, in general terms, the conditions for the publication of information from documents provided by a cartel member to the Commission in support of a statement made to obtain leniency.
This will have a significant impact on future cases which particularly invlove accessing information on cartel infringements.