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.

daniele.calisti@ec.europa.eu