In context

Damages claimants have to make do with EC’s public cartel decision

November 11, 2013
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In context

Don’t bank on the Transparency Regulation to give you access to the Commission’s confidential cartel files to substantiate your civil damages claims. A ruling  by the General Court suggests that access will be rarely granted. Instead, national courts may lend you a hand by asking the Commission to transmit relevant information.

The Netherlands requested access under the Transparency Regulation to the confidential version of the Commission’s road bitumen cartel decision. The Netherlands argued it needed this information to further substantiate its civil damages claim against the alleged cartel members. The General Court found that the Commission rightly rejected the request on the basis of Article 4(2) of the Transparency Regulation. The Court also held that a general presumption applies under the Transparency Regulation that disclosure of documents collected in the context of competition investigations will undermine the commercial interests of the companies concerned as well as the purpose of the Commission’s investigation. This general presumption applies regardless of whether the cartel proceeding is still pending or has been closed.

 

It is up to the party seeking access to rebut this general presumption by, for instance, claiming an overriding public interest. The General Court ruled that the Netherlands did not have an overriding public interest because the further substantiation of a civil damages claim qualifies not as a public but as a private interest. The fact that the Netherlands is an EU member state does not make this any different since the Transparency Regulation does not grant any special status to EU member states: it applies equally to all applicants requesting access. The General Court did, however, mention that it is up to the competent national court before which the civil damages claim is brought to rule on the mechanisms for submission of the necessary evidence. It could request the Commission to transmit relevant information and documents, particularly since Article 15(1) of Regulation 1/2003 provides that national courts involved in proceedings relating to EU competition law can ask the Commission to transmit information in its possession to those courts or for its opinion on questions concerning the application of the EU competition rules.

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