1. The interplay between private enforcement and leniency policy
ICN Webinar 2015
The interplay between private enforcement and leniency policy
Dr. Christoph Schirra
Bundeskartellamt
SKK

2. Challenges of Cartel Detection
Prohibited cartels are secret and evidence is hidden
High dark figure
To uncover and prove cartels is the biggest challenge for public and private enforcement
Different ways to uncover cartels:
Informants / complaints of competitors or other market participants (third companies, consumers)
Other cases/proceedings
Market research / screening
Leniency applications

3. BKartA: Importance of Leniency

4. Interplay of Public and Private Enforcement
Mutual support and conflicts
Private Enforcement
Increases deterrence => Prevention of more harm
Enforces restitution
Victim´s focus on particular case that is already detected
Public Enforcement
Increases deterrence => Prevention of more harm
Enables and facilitates restitution
Authority´s focus on competition enforcement in general

5. Civil Damages Actions in Germany
Private enforcement has been a pillar of cartel enforcement in Germany for decades
Detection of cartels by victims very difficult
Follow-on claims further strengthened in 2005:
burden of proof: binding effect of final fining decisions for civil courts
individual damage can be estimated by the relevant court
cartel proceedings stop clock for possible damage claims

6. Importance of access to file in cartel cases
Request for access to file in almost every concluded case
Huge amount of applicants
In 2014 approx. 150 applications
Cases e.g.: sugar, sausage, rail cartel case
Variety of cartel damage claims are pending before several courts
Claimed damages
e.g sugar: currently approx. 30 damage claims value of claim >300 Mio. €
 Private cartel enforcement is widespread in Germany

7. Access to file for persons potentially suffered damages according to sec. 406e CCP
Clients of the cartelists who (in)directly purchased the cartelized product during the infringement period or clients of companies active on the same market that did not participate in the cartel (umbrella-effect)
Usually only disclosure of fining decision as it contains all the relevant information about the acting individuals and the infringement as such, including the infringement period as well as the products affected by the infringement
Due to the binding effect of the fining decision (see above) the claimant will be able to establish the infringement based on the fining decision and would then only need to provide evidence for the amount of the damages that he suffered.

8. Access to file for persons potentially suffered damages according to sec. 406e CCP
Usually no access to other parts of the file esp. leniency applications (the leniency statement as well as pieces of evidence joined to the statement, i.e. so-called pre-existing documents)
Local court of Bonn: access to leniency material would endanger future cartel investigations as it might deter future leniency applicants from bringing forward an application for leniency
Higher Court of Düsseldorf: the provision of the German leniency program assuring leniency applicants that their applications will not be disclosed to third parties as far as the law confers discretionary powers with regard to the extent of disclosure is justified by the public interest to detect and prosecute cartel infringements.

9. Access to file for persons potentially suffered damages according to sec. 406e CCP
The ECJ rulings in Donau Chemie and EnBW confirms BKartA approach as they both point out that disclosure is only to be granted to the extent that the applicant shows which parts of the file are necessary in order to obtain evidence for the intended action for damages

10. Thank you for your attention!
ICN Webinar 2015
Thank you for your attention!