Cartels and Leniency

Over the past year, member states’ courts have continued to deal with the inherent tension between the rights of cartel victims to claim private damages in national courts for breaches of EU law and the effectiveness of public enforcement of the competition rules by the European Commission. Following Pfleiderer, national courts have struggled in conducting the balancing exercise to decide whether or not to disclose documents to victims of cartels resulting in an inconsistent and unsatisfactory approach in the protection of leniency evidence across different jurisdictions. The absence of EU rules meant that on the one hand, potential leniency applicants could not be sure whether the information they submitted with their application would be disclosed to a future claimant and used against them, thus putting them in a weaker defensive position than fellow cartelists who had not cooperated with the relevant competition authority. On the other hand, claimants faced an uneven playing field due to the diverse national rules governing antitrust damages actions, with the result that claimants’ ability to obtain compensation often depended on where they could bring their claims and the interpretative largesse of the judge.1 The Commission was concerned that this would result in appreciable distortions of competition in the internal market.