Transcript The new visual identity - Competition Law Association

Getting hold of the documents: Legal
principles for disclosure in the antitrust
context
Dr Daniele Calisti
European Commission – DG Competition
Competition Law Association
22 May 2013
Overview
•
The EU conceptual
framework for disclosure
•
How transparent are DG
COMPETITION's walls?
•
Striking a balance
between public and
private enforcement.
DG Competition and Disclosure
Possible legal bases to get hold of documents
held by the Commission
•Public access to documents through Regulation 1049/2001
•Access to the file (Regulation 773/2004)
•Direct access by national courts: Requests for Information
under Article 15(1) of Regulation 1/2003
•Inter partes disclosure
1. Public access (Reg 1049/2001)
• Main features
• Article 2(1) ‘Any citizen of the Union, and any natural or legal
person residing or having its registered office in a Member
State, has a right of access to documents of the institutions
(…).
• Article 2(3) ‘This Regulation shall apply to all documents held
by an institution, that is to say, documents drawn up or
received by it and in its possession, in all areas of activity of
the European Union’
• Article 4(2): exceptions, e.g. protection of commercial
interests of a natural or legal person and the purpose of
inspections, investigations and audits (unless there is an
overriding interest in disclosure).
1. Public access (Reg 1049/2001)
• How has it worked in practice?
• The Commission’s practice in the antitrust field
• Is Regulation 1049/2001 an appropriate avenue for
private enforcement?
•
The General Court’s judgments in cases T-437/08 CDC Hydrogene
Peroxide, T-344/08 EnBW, and T-/
• Comparison: Mergers (C-477/10 P Agrofert, C-404/10 P Odile
Jacob)
• Comparison: State Aid (C-139/07 P Commission v. TGI)
• Does the Commission enjoy a presumption for the
protection of the investigation in the antitrust field?
2. Access to the file (Reg 773/2004)
• Relevant provisions
• Addressees of an SO - 15(1) ‘If so requested, the
Commission shall grant access to the file to the parties
to whom it has addressed a statement of objections (…)’
But also:
• Complainant: receives non-confidential version of the
S.O. - Article 6(1) (except settlements)
• Attendees of the oral hearing: may receive recording of
the hearing – Article 14(8)
• Settlements negotiations – 15(1a)
2. Access to the file (Reg 773/2004)
• Limitations
• 15(2) ‘The right of access to the file shall not extend to
business secrets, other confidential information and internal
documents of the Commission or of the competition
authorities of the Member States’
• (…) ‘shall also not extend to correspondence between the
Commission and the [national] competition authorities’
• 15(4) Documents obtained through access to the file
pursuant to this Article shall only be used for the purpose of
judicial or administrative proceedings for the application of
Articles [101] and [102] of the Treaty.
• See also Regulation 1/2003, Articles 27 and 28
• s. also Leniency Notice – treatment of corporate statements
3. Information requests (Reg 1/2003)
• Article 15(1) of Regulation 1/2003
• 'In proceedings for the application of Article [101] or
Article [102] of the Treaty, courts of the Member States
may ask the Commission to transmit to them
information in its possession or its opinion on questions
concerning the application of the Community competition
rules'
• Notice on cooperation with courts, point 21: '(…) A
national court may, e.g., ask the Commission for
documents in its possession or for information of a
procedural nature (…)'
• Treaties impose duty of loyal and sincere cooperation
3. Information requests (Reg 1/2003)
• Practice and limitations
• A direct channel of information to national courts.
• Article 339 TFEU (s. also article 28 of Reg 1/2003) and
the protection of confidential information: can the court
ensure adequate protection? [cfr. T-353/94 Postbank]
• C-275/00 Zwartveld: Unless refusal to provide
information is justified by overriding reasons relating to
the need to safeguard the interests of the Union or avoid
any interference with its functioning or independence,
particularly by jeopardising the accomplishment of the
tasks entrusted upon it.
• = Leniency? See point 26 of Notice on cooperation with
national courts
4. Inter partes disclosure
• Mechanisms provided under national law in the Member
States – procedural autonomy and its limits.
• Can the Commission be a third party in disclosure? (see
Information requests under Regulation 1/2003)
• Can a National Competition authority be a third party?
• Can parties in damages actions be compelled to disclose
documents relating to public enforcement proceedings?
• 2008 White Paper on damages actions: disclosure
mechanisms should be available to parties to damages
actions in all Member States.
• BUT - Need to protect the effectiveness of public
enforcement (e.g. investigative privilege, corporate
statements).
Striking a balance – a starting point
• Leniency notice, point (6):
‘In addition to submitting pre-existing documents, undertakings
may provide the Commission with voluntary presentations of
their knowledge of a cartel and their role therein prepared
specially to be submitted under this leniency programme. These
initiatives have proved to be useful for the effective investigation
and termination of cartel infringements, and they should not be
discouraged by discovery orders issued in civil litigation.
Potential leniency applicants might be dissuaded from
cooperating (…) if this could impair their position in civil
proceedings, as compared to companies who do not cooperate.
Such undesirable effect would significantly harm the public
interest in ensuring effective public enforcement of Article [101
TFEU] in cartel cases and thus its subsequent or parallel effective
private enforcement’
C-360/09 Pfleiderer as the first test.
• A case originating from private enforcement following a
national competition authority’s decision
• The Commission’s arguments for the protection of public
enforcement
• The line drawn by Advocate-General Mazák
• The ECJ (Grand Chamber) sets the goalposts of the
discussion and requires a balancing. [‘It is for the courts and
tribunals of Member States, on the basis of their national law, to
determine the conditions under which such access must be
permitted or refused by weighing the interests protected by
European Union law’]
Striking a balance – the road ahead
• Elevators litigation in Belgium – is the Commission 'more
equal' than other injured parties?
(see also C-199/11 Commission v. Otis and others)
• National Grid – the Commission provides its interpretation of
the law after Pfleiderer in its amicus curiae submissions to the
High Court.
• C-536/11 Donau Chemie – can the balance between public
and private enforcement be struck through statutory
provisions? (see opinion of AG Jääskinen of 7 Feb 2013)
• Beyond the 2008 White Paper on damages actions.
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