1. Discovery / disclosure issues in EU cartel enforcement
Jindrich Kloub
Case handler
DG COMP, Cartels
European Commission
ICN SG1 webinar on Disclosure/ Discovery, 9th September 2016

2. Outline
Basic principles relating to access to material in cartel investigations
Issues concerning access to cartel case material:
Directly from the Commission
In litigation in national EU courts
In foreign litigation (mainly US courts)

3. Basic principles
Rights of defence: access to Commission's file by parties to the investigation
Transparency: access to Commission's documents by European citizens and residents
Right to compensation: effective access to relevant evidence by plaintiffs
Effective application of competition rules by the Commission: protection of business secrets, protection of the purpose of investigations - including leniency and settlements

4. Obtaining access from the Commission
By parties to the investigation:
Access to full file after the SO, except business secrets and internal documents (Art 27(2) Reg. 1/2003, Art 15 Reg 773/2004)
Access to leniency statements only on Commission premises (Point 33 of the 2006 Leniency Notice)
By complainants:
Access to non-confidential version of the SO
By European citizens and residents (Reg 1049/2001):
Access to all documents of EU institution
Exceptions to protect business secrets , purpose of investigations and internal documents (Articles 2 and 3 of Reg 1049/2001) + general presumption (Case C-365/12 Commission v EnBW)

5. Obtaining access in national courts
Damages Directive (2014/104/EU):
Facilitates inter-partes disclosure of evidence (Article 5 DD)
Protects public enforcement by limiting access to, and use of, evidence from Commission files by setting out a 'black list' and 'grey list'
Black list: leniency statements and settlement submissions
Absolute protection from disclosure (Article 6(6) DD)
Inadmissible evidence, if obtained solely through A2F (Article 7(1) DD)
No transmission from COM to courts (para. 26a Cooperation with Court Notice; para. 35a LN; para. 39 SN)
Grey list: information prepared by parties specifically for COM proceedings & information drawn up by COM and sent to parties
Protection from disclosure as long as proceedings not closed (Article 6(5) DD
Inadmissible evidence as long as proceedings not closed, if obtained solely through A2F (Article 7(2) DD)
No transmission from COM to courts as long as proceedings not closed (para. 26b CN);

6. Obtaining access in foreign courts
Mainly in damages litigation in the United States in the course of pre-trial discovery
From defendants who are the parties to the Commission's investigation
Plaintiffs ask for discovery of various material, e.g.
The Commission's final decision or SO
The transcript of the Oral Hearing
Material produced to the Commission
Any communications between the Commission and the defendants
To protect the effectiveness of its investigation, the Commission:
Advocates its position in public fora (submission to the AMC)
Intervenes in individual cases (through the parties or directly), e.g. Laydon, Air Cargo, Vitamins, Methionine
Reliance on the principle of international comity (Aerospatiale analysis)