Decision of Düsseldorf Higher Regional Court safeguards Bundeskartellamt's leniency program

In the proceedings against several coffee roasters, the Higher Regional Court in Düsseldorf decided on 22 August 2012 that the denial of third-party access to the leniency applications of cartel participants was also valid in court proceedings. Leniency applicants can now rely on their applications being kept confidential, not only by the Bundeskartellamt but also in court proceedings.

Andreas Mundt: "In numerous cases, it is only with the help of leniency applicants that the Bundeskartellamt is able to detect and prosecute hard-core cartels. The court's decision protects the attractiveness of the Bundeskartellamt's leniency program which is of fundamental importance for effective cartel prosecution."

On the basis of several leniency applications, the Bundeskartellamt had detected a cartel agreement between coffee roasters in 2009 and imposed fines on the cartel members of approx. € 160 million (cf. Bundeskartellamt press release of 21 December 2009). Because two of the coffee roasters appealed the decisions imposing the fines, the Bundeskartellamt referred the proceedings to the Düsseldorf Higher Regional Court. Subsequently, several retailers who were customers of the cartel members requested access to the files, including the leniency applications. The Higher Regional Court has now decided that the leniency applicants' trust in the confidential treatment of their applications and documents submitted by them prevails over the information interest of the parties requesting access to the files. In the court's view, this legitimate interest of customers who have suffered damages from a cartel can generally be adequately satisfied by the disclosure of the Bundeskartellamt's orders imposing the fines.

Background:
Already the possibility of granting access to leniency applications could deter cartel members from cooperating with the Bundeskartellamt. For the same reason the European Court of Justice decided in the Pfleiderer case that in the question of whether to grant access to the files the effectiveness of cartel prosecution by means of a well-functioning leniency program had to be taken into account (cf. Bundeskartellamt press release of 30 January 2012). Germany offers a well functioning legal system for civil damages claims. Over time, its effectiveness has been further enhanced by legislative measures and landmark court decisions. Of key significance is the fact that the finding of a competition law infringement by the competent authorities is binding on the judge in the follow-on damages actions. Private claims for damages suffered from competition law violations are an important supplement to public antitrust enforcement. To be able to claim damages, however, the victims of cartel agreements often depend on the competition authorities to uncover the cartel. If the effectiveness of the leniency program were reduced by granting access to the applications, a significantly lower number of cartels would be detected. This would not only hamper the punishment of the infringers, but also the compensation of the victims.