Access to Cartel Settlement Documents for Plaintiffs in France

By on September 8, 2011

by Philipp Werner and Lionel Lesur

A French court has added another layer of complexity to cartel cases in the European Union.  The Commercial Court in Paris has ordered the French competition authority to disclose documents relating to an antitrust investigation.  The order concerns non-confidential versions of written and oral statements gathered during the investigation.

The ruling may strengthen plaintiffs’ position in damages actions.  The French court’s ruling only concerns settlements before the French competition authority but other European countries may follow France’s lead.  According to the European Court of Justice’s recent Pfleiderer judgement, national courts must decide whether plaintiffs may have access to documents submitted to national Member State authorities.

The number of private damages actions in the European Union is constantly increasing.  Most of these actions are "follow-on action," based on an infringement decision by the European Commission or the antitrust authority of an EU member State.  Plaintiffs can rely on the infringement decision as proof for the antitrust infringement but must further substantiate and prove the harm suffered as a result of the cartel.  They are therefore seeking access to information contained in the antitrust authorities’ files, in particular to leniency applications, the confidential version of the infringement decision and also settlement documents.  It is still unclear whether plaintiffs will have access to leniency documents submitted to national antitrust authorities.





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