Monday, December 26, 2011
Posted by D. Daniel Sokol
Laura Atlee (Steptoe & Johnson) describes Unseen Risks of Disclosure in Leniency Programs.
ABSTRACT: When prosecuting cartel infringements, the European Commission (the "Commission") most often builds its case on the basis of corporate leniency applications and documents. When the case reaches maturity and results in administrative fines being imposed on the companies implicated in the cartel, it then encourages affected consumers and customers to file-on civil claims against the same companies in national courts. Civil claims are viewed as furthering the Commission's goal of achieving effective deterrence across the EU. Civil litigation, however, has not been very successful. This may be partially due to potential plaintiffs' inability to collect the necessary evidence to establish their claims. This issue, and its potential conflict with the Commission's leniency program, came to a head in Pfleiderer. In that case, the European Court of Justice (the "Court") held that, in the absence of controlling EU-wide legislation on the question, national courts must decide on a case-by-case basis and in accordance with their national procedural laws the level of access a civil plaintiff should have to documents submitted under a cartel leniency program.
What does the Court's position mean for leniency applicants? The leniency applicants' submissions will be made public-unless they are not. Pfleiderer illustrates how the Court and the Commission are wrestling with the scope of disclosure owed to consumers affected by cartels. Companies ought to consider carefully the civil litigation implications when pressing the leniency button.