ECJ rules no blanket ban on access to leniency documents by private damages claimants

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On 6 June 2013, the European Court of Justice (ECJ) shot down an Austrian law that made access to documents, including leniency materials, on a court’s cartel file almost impossible for third-party damages claimants. It ruled that national courts must be able to weigh up the interests for and against disclosure on a case-by-case basis. But the ECJ perhaps leans slightly in favour of the interests of claimants in the detail of its findings.

In 2010, the Austrian Cartel Court imposed fines on a number of companies for operating a cartel in the market for the wholesale distribution of printing chemicals. An association of companies in the printing sector then sought access to the Cartel Court’s file on the cartel investigation. It wanted to examine the documents to assess the level of harm caused by the cartel with a view to bringing an action for damages.

Under the Austrian Law on Cartels, third parties are prevented from access to Cartel Court files without the consent of all other parties to the proceedings. Unsurprisingly, all parties (with the exception of the Competition Authority) refused consent…

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