Judgments in the Degussa and Akzo cases: erosion of the European leniency programme?

The General Court of the European Union (the “General Court”) recently passed judgment on the appeals filed by Degussa and Akzo against the (proposed) publication of an amended public version of a fine order of the European Commission for breach of the cartel prohibition. The question in both cases was whether the European Commission was authorised to publish such a new (amended) version of the fine order.

The original order was published in 2007 and did not contain any information that had been provided by the parties under the leniency programme. The new order was to state the entire content of the order, including information provided with regard to the leniency application, with the exception of confidential information.

One of the reasons why Degussa and Akzo filed an appeal was that the information that they had voluntarily provided under the leniency programme was confidential and publication of the order would undermine the effectiveness of the leniency programme of the European Commission which, moreover, is subject to confidentiality. In the appeal proceedings the European Commission took the position that not all the information with which it had been provided (under the leniency programme) was (or was still) confidential. The General Court agreed with the European Commission, because the information was more than five years old and could therefore no longer be considered confidential. The General Court furthermore found that the European Commission had a broad margin for discretion in deciding whether or not to disclose information in its decision. The appeals filed by Degussa and Akzo were therefore disallowed.

The tension between disclosure of information provided under the leniency programme on the one hand and the right to information of victims of cartels on the other hand has given rise to many legal disputes for some time already. In the Pfleiderer case, for instance, the Court of Justice found that it was up to the courts of the Member States “to determine on the basis of their national law on what conditions” third parties can gain access to information in the (national) leniency programme. In its Donau Chemie judgment the Court of Justice confirmed that national courts must weigh the interests involved. However, the private enforcement directive, which must be enacted in national legislation by the end of 2006, puts the effectiveness of the leniency programme first and provides that national courts may not be given access to leniency applications in follow-on proceedings.

Public Access Regulation

An interesting case in point is the EnBW case, which centred around a request based on Regulation 1049/2001 (the “Public Access Regulation”) for disclosure of documents under the leniency programme. Unlike the General Court, the Court of Justice found that the European Commission could base its decision on such a request on a general suspicion that, in principle, the disclosure of categorised documents, i.e. without specifically and separately investigating each document, would undermine the protection of the commercial interests of the companies in question and the protection of the purpose of the investigations in question. In this case the European Commission was not obligated to disclose documents under the leniency programme.

Although the Degussa and Akzo cases relate to the publication of an amended public version of the order by the Commission itself, and therefore not to the disclosure of e.g. corporate statements or other documents, and they therefore essentially differ from the cases referred to above, both judgments imply that a leniency applicant can never be certain that third parties will not gain access to information made available to the Commission. However, an important difference compared with the Pfleiderer and Donau judgments is that in the Degussa and Akzo cases the European Commission itself weighed the interests involved in disclosure of certain information and the protection of its own leniency programme.

Remarkably, it is apparent from the Akzo judgment (paragraph 38) that the Commission took the position in a letter to Akzo that its intention to publish a new version should be put on a par with a request under the Public Access Regulation for access to the confidential version of the order. That approach to its decision to publish an amended public version of the order appears to offer possibilities to claimants in follow-on proceedings.

On the basis of this interpretation, the Public Access Regulation offers possibilities of obtaining a more extensive public version of the order after some time. Such a request is easily made in practice (provided that it is sufficiently specified; see e.g. Axa), but the consequences may be drastic. The disclosure of information in leniency applications, even if that is done only in a new version of the order, may mean that cartel members will think twice before requesting leniency. That risk should be qualified, however, since it is apparent from the General Court’s Akzo and Degussa judgments (but also from the EnBW judgement of the Court of Justice) that the European Commission has the possibility of weighing the interests of transparency for the benefit of third parties on the one hand and the importance of protecting the effectiveness of the leniency programme on the other hand.

Dutch cartel proceedings

The question whether and, if so, to what extent leniency material may be disclosed has been at issue some time already and is also relevant to Dutch cartel proceedings. Recently, for instance, an attempt was made to obtain such information by means of a provisional examination of witnesses. That request was disallowed, but the General Court’s judgments may well open the doors to requests for information under the leniency programme in the Netherlands on the basis of the Wet openbaarheid bestuur (Government Information Public Access Act), in the form of a request for publication of a new public version of the fine order.

The Netherlands Authority for Consumers and Markets (“ACM”), however, is authorised (also under the Government Information Public Access Act) to refrain from providing information if the interest involved does not outweigh the avoidance of disproportionate advantaging or disadvantaging of third parties. ACM previously made use of that possibility to ensure that the interest of the leniency programme prevailed over disclosure. However, that case related to (underlying) documents made available under the leniency programme. This does not prejudice the possibility of aggrieved customers, while brandishing the Degussa and Akzo judgments, of applying to ACM for information in the leniency programme under the Government Information Public Access Act by requesting a new public version of the fine order. Relevant information on price and other agreements made that may be relevant to cartel loss proceedings may then be disclosed. It remains to be seen for the present how ACM will deal with this.

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