The view of the Court of Justice of the European Union about the scope of probability

The issue of competition law in the disclosure of evidence has been raised several times among the walls of the European Court of Justice (CJEU The CJEU set out the criteria for judicial discretion in the process to assess probability and examined the scope of the Member State's legislative obligation to establish a system of discretion.

There were two cases in point: the Pfleiderer and the Donau Chemie cases.

Pfleiderer AG was a company registered in Germany and a direct customer of companies subject to proceedings before the competition authorities of the Member States. Prior to the German court proceedings, the competition authority imposed a total fine of EUR 62 million on the members of the cartel, basing its decision in part on documents submitted under the German leniency policy. Following the decision of the German competition authority, Pfleiderer AG sought to bring an action for damages against the companies concerned.⁸ In preparation for its action for damages, it applied to the German competition authority for full access to the files of the case. The German competition authority and the competent court of first instance following the action brought by Pfleiderer AG dismissed the application and that particular part of the action which concerned business secrets and confidential documents. It did not consider it necessary to disclose the documents requested in order to rule on the action for damages before the CJEU.

The national court's question was essentially whether the provisions of Community law on competition law could ensure that cartel victims had access to information and documents provided in the context of the leniency procedure.

In its judgment, the CJEU emphasized that, in the absence of EU legislation, it was up to the Member States to establish national rules on the right of cartel victims to access documents relating to leniency proceedings.⁹ In its reply to the courts of the Member States, the CJEU also stated that, it was necessary to consider the issue on a case-by-case basis, in light of all the circumstances, how to best safeguard EU competition law does it serve better. In its assessment, the courts of the Member States must ensure that the

8 Case Pfleiderer C-360/09.

9 Case Pfleiderer C-360/09., point 23

conditions for access sought to obtain compensation for an infringement of EU competition law are not less favourable than those based on similar national law. The CJEU also stressed that the conditions of access should not be such as to make it extremely difficult or impossible to obtain compensation. The courts of the Member States, however, must take into account, in the context of leniency policy, the interests justifying access to the file and the protection of the information provided herein.¹⁰

In general, the CJEU underlined the principle that it was not contrary to EU competition law for an injured party to an infringement of EU competition law to have access to documents provided under a leniency program. It also stressed that it was for the national courts to determine the conditions of such access.

There has been strong criticism towards this judgment in the literature of competition law. According to some views, the CJEU did not decide on the question of whether the leniency documents were to be made available, but it failed not provide any guidance on key task delegated to Member State courts i.e. the criteria for deliberation.¹¹ The CJEU also left open the question of whether a court of a Member State should weigh up the interests protected by EU law even if the law of a Member State does not allow such a deliberation.¹² According to other views, the requirement to weigh up interests jeopardizes the effectiveness of the leniency policy, so the CJEU fundamentally opted for the primacy of the leniency policy (public enforcement).¹³

These shortcomings raised by the critics have been partially addressed by the CJEU and the General Court in subsequent judgments.

In the Donau Chemie case¹⁴, the Vienna Provincial Court of Appeal¹⁵, as a cartel court, imposed a total fine of EUR 1.5 million on Donau Chemie and Others. The Court based its decision in part on documents submitted under the Austrian leniency policy and applied EU competition law.

Verband Druck & Medientechnik (VDMT), an association registered in Austria, whose members are direct customers of the companies involved in the proceedings, applied to the cartel court for full access to the documents in the ongoing court

10 Case Pfleiderer C-360/09., point 30–31

11 SANDERS,Michael – JORDAN, Elisabeth – DIMOULIS, Charalampos – SCHWEDT, Kirstin – DILUIGI, Brenda – VAN WISSEN, Maikel: Disclosure of leniency materials in follow-on damages actions: striking „the right balance” between the interests of leniency applicants and private claimants? in: ECLR, 2013, No. 4, p. 175, also quotes: HORVÁTH András:

Versenyjogi kártérítési igények egyes kérdéseiről, kitekintéssel az iratokhoz való hozzáférésre - Doktori értekezés, Budapest, 2015., p. 203.,

https://edit.elte.hu/xmlui/bitstream/handle/10831/32777/DI_Tezisek_HorvathAndras_EDIT.pdf?sequence=2&is%20Al lowed=y (2021.09.25)

12 CAUFFMANN, Caroline: Access to leniency-related documents after Pfleiderer, in: WC, 2011., No. 4, p. 606, also:

HORVÁTH: op.cit. p. 207,

13 KAPP, Thomas: Das Akteneinsichtsrecht kartellgeschädigter Unternehmen: Bonn locuta, causa finita? in: WUW, Issue 5, 2012, page 476, also quotes: HORVÁTH: op.cit. p. 203,

compare NAGY István Csongor: Az európai „magánversenyjog” hajnala, Verseny és szabályozás 2019., KRTK Közgazdaság-tudományi Intézet, Budapest, 2020., pp. 13–25 „… the Court of Justice has classified private enforcement as public law and has recognized that it can make a significant contribution to the detection and sanctioning of infringements.” https://kti.krtk.hu/wp-content/uploads/2020/03/Verseny_2019_teljes.pdf (2021.09.10.)

14 Case Donau Chemie C-536/11.

15 Oberlandesgericht Wien

proceedings under the general rules on access to documents in the Austrian civil procedure. The companies concerned in the case refused their consent, while the Austrian competition authority granted access to the cartel court's decision.

The cartel court referred the matter to the CJEU for a preliminary ruling. It sought to answer the question whether national antitrust law, which allows access to documents only with the consent of all parties involved in the leniency procedure, is contrary to EU law. In their question, the court referred to the judgment in the Pfleiderer case, according to which the courts must make their decision on the basis of a case-by-case assessment of access to the given files.

The CJEU, reiterating its findings of the Pfleiderer judgment, stated that both a rigid rule prohibiting access to documents altogether and a general rule granting public access were likely to jeopardize the effective application of EU competition law. The rules of the Member States cannot be designed in such a way as to preclude national courts from making a case-by-case assessment in accordance with the criteria laid down in the Pfleiderer case.

The Court also stressed that if a unilateral objection made by either of the parties may prevent disclosure of access to documents, national courts will be restricted to weigh the interest protected by EU law and may not interfere in the protection of an overriding public interest or the overriding legitimate interests of others.¹⁶

The CJEU also stated that deliberations relating to leniency documents should not lead to a systematic refusal of access to documents, as access can only be refused on a case-by-case basis.¹⁷

Perhaps the most important finding of the CJEU was made in relation to the process of deliberation. It pointed out that the courts of the Member States had to take into account any other possibilities for preparing actions for damages and the truly harmful consequences of access. With regard to the latter, the Court stated that the refusal of access to each document must be based on an overriding reason relating to the protection of the interest, the mere reference to the risk that access would adversely affect the effectiveness of the leniency policy is not in itself sufficient.¹⁸

With regard to the question referred for a preliminary ruling, the CJEU stated that a national provision which makes access to documents conditional on the consent of all parties to the leniency procedure, is contrary to EU law. Such legislation precludes the individual discretion of the court in the case.

The major difference between the Donau-Chemie judgment and the Pfleiderer judgment is that the former focuses on the consideration of abstract, general principles (leniency policy and tort law), while the latter specifically examines the balance between individual interests. In view of this, leniency documents are made available if they are necessary in the interests of the injured party and do not pose a specific threat to the

16 Case Donau Chemie C-536/11., points 35–39

17 Case Donau Chemie C-536/11., point 43

18 Case Donau Chemie C-536/11., points 44–47

effectiveness of the leniency policy. This is a requirement for the discretion of law enforcers.¹⁹

The issue of disclosing evidence was also raised in another case, the Cartel Damage Claims (CDC) case²⁰. In the CDC case, the Commission, as a competition authority, imposed fines on seven undertakings totalling EUR 388 million. Hydrogen Peroxide SA submitted a request for access to the table of contents of the Commission's file, but the request was rejected by the Commission. Under the Transparency Regulation²¹, it argued that the access would adversely affect the protection of the commercial interests of legal persons and the purpose of investigations and would seriously jeopardize the Commission's decision-making process.²² The CDC challenged the Commission's negative decision before the General Court.

In the reasoning of its judgment, the General Court made important additions to the public and private legal context of the cartel prohibition; the protection of the leniency policy and the widespread enforcement of competition law claims. According to the judgement, the disclosure of the table of contents does not in itself affect the commercial interests of the companies involved in the cartel. The interest of the companies participating in the cartel in avoiding actions for damages cannot be regarded as a commercial interest worthy of protection.²³ It denied that the disclosure of the documents submitted by the leniency applicant would jeopardize the enforcement of EU competition law. ²⁴

The General Court made further additions to the issue in the wake of the GIS cartel case²⁵. The Commission imposed a fine ten electrical equipment companies totalling at EUR750 million. EnBW Energie Baden-Württemberg AG submitted a request to the Commission for full access to the files under the Transparency Regulation. Their request was rejected by the Commission. In its decision, the Commissio divided the case files into five categories: leniency documents, disclosure of data, documents seized during the on-the-spot investigation, the Statement of Objections and the replies, and internal documents. The Commission argued that access to all five groups of documents would adversely affect the commercial interests of legal persons and the protection of the purpose of investigations, and would seriously jeopardize the Commission's decision-making process. EnBW brought an action before the General Court for annulment of the Commission's decision.

19 DWORSCHAK, Sebastian – MARITZEN, Lars: Einsicht – der erste Schritt zur Besserung? Zur Akteneinsicht in Kronzeugendokumente nach dem Donau Chemie-Urteil des EuGH, in: WUW, Issue 9, 2013, pp. 838–839, also quotes:

HORVÁTH: op. cit. p.209

20 Case CDC T-437/08.

21 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (Article 4 (2) and (3) of the Transparency Regulation).

22 The purpose of the Transparency Regulation is to give the fullest possible effect to the right of public access to documents.

23 Case CDC T-437/08., points 47–48

24 Case CDC T-437/08., points 76 and 79

25 Siemens Aktiengesellschaft Österreich has entered into an agreement with other companies in the market for gas-insulated switchgear (GIS) switchgear with a voltage of at least 72 kW.

The General Court stated in its judgment that the EC may refuse access on the basis of categories of documents if it is clear that access should be refused. Such refusal is justified if documents belonging to the same category contain the same type of information for the purpose of examining access, or if a specific and individual examination would impose an extremely heavy administrative burden beyond what can reasonably be expected.²⁶

In its appeal against the General Court's decision, the CJEU pointed out that the Commission's infringement decision did not regard the procedure as closed, the Commission would re-use elements of the file in its proceedings in case of an annulment of the decision, which could jeopardize the decision-making process. The Court emphasized that neither proven nor probable that an antitrust case would require all the elements of the file, so that the interest in damages did not constitute an overriding public interest that could invalidate the general presumption. In view of the CJEU repealed the judgment of the General Court. ²⁷

Decisions of the CJEU and the General Court provide guidance on legislative obligations and deliberations. The judgment in the Pfleiderer case laid down a requirement in relation to the law of a Member State stipulating that the courts of the Member States must weigh up the interests protected by European Union law in relation to access to documents case by case. And although the judgment did not detail the criteria of deliberation, this shortcoming was remedied by the judgment adopted in the Donau Chemie case. This decision did state that it is for the legislature of the Member States to ensure the procedural conditions for a case-by-case assessment. In particular, it is for the courts of the Member States to take into account other possibilities for obtaining evidence and, at the same time, taking into account the adverse effects of access, the protection of business secrets and the effective enforcement of competition law under public law. The CDC judgment emphasized the need for a specific examination of documents in relation to the protection of commercial interests, whereas the EnBW judgment dealt in detail with situations where a court does not have to carry out a specific examination of documents before refusing access.²⁸ The latter two cases have also shown that it also requires an assessment to decide to what extent the evidence sought to be disclosed must be examined individually before a decision is taken.

3. Disclosure of evidence in Hungarian civil proceedings

The Hungarian legislator complied with its obligation of implementation, arising from the Directive, by amending and supplementing the Tpvt. Consequently, when examining evidence the national courts must act in accordance with the rules laid down in the Tptv, but in accordance with the practice established by the CJEU and the General

26 Case EnBW, T-344/08., points 45–47

27 Case EnBW, C-365/12., points 99. and 106–108

28 HORVÁTH: op. cit. p. 69

Court.²⁹ Rules laid down in the Pp. shall be applied with the exceptions specified in the Tpvt. Thus, the established regulation is multi-layered, during the course of the independent institutionalization of the “disclosure of evidence” it requires a dogmatic settlement from the submission of the application, through the decision-making framework, to almost all stages of legal proceedings.