# C_2012013EN.01000503.xml

| 14.1.2012 | EN | Official Journal of the European Union | C 13/5 |
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14.1.2012

EN

Official Journal of the European Union

C 13/5

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Reference for a preliminary ruling from the Oberlandesgericht Wien (Austria) lodged on 20 October 2011 — Bundeswettbewerbsbehörde v Donau Chemie AG and Others

(Case C-536/11)

2012/C 13/11

Language of the case: German

Referring court

Referring court

Oberlandesgericht Wien

Parties to the main proceedings

Parties to the main proceedings

Applicant: Bundeswettbewerbsbehörde

Applicant:

Defendants: Donau Chemie AG, Donauchem GmbH, DC Druck-Chemie Süd GmbH & Co KG, Brenntag Austria Holding GmbH, Brenntag CEE GmbH, Ashland-Südchemie-Kernfest GmbH, Ashland Südchemie Hantos GmbH.

Defendants:

Other parties to the proceedings: Bundeskartellanwalt, Verband Druck & Medientechnik

Other parties to the proceedings:

Questions referred

Questions referred

| 1. | Does European Union law, in particular in the light of the judgment of the Court of Justice of 14 June 2011 in Case C-360/09 Pfleiderer, preclude a provision of national antitrust law which, (inter alia) in proceedings involving the application of Article 101 or Article 102 TFEU in conjunction with Regulation 1/2003/EC, (1) makes the grant of access to documents before the cartel court to third persons who are not parties to the proceedings, so as to enable them to prepare actions for damages against cartel participants, subject, without exception, to the condition that all the parties to the proceedings must give their consent, and which does not allow the court to weigh on a case-by-case basis the interests protected by European Union law with a view to determining the conditions under which access to the file is to be permitted or refused? |
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1.

Does European Union law, in particular in the light of the judgment of the Court of Justice of 14 June 2011 in Case C-360/09 Pfleiderer, preclude a provision of national antitrust law which, (inter alia) in proceedings involving the application of Article 101 or Article 102 TFEU in conjunction with Regulation 1/2003/EC, (1) makes the grant of access to documents before the cartel court to third persons who are not parties to the proceedings, so as to enable them to prepare actions for damages against cartel participants, subject, without exception, to the condition that all the parties to the proceedings must give their consent, and which does not allow the court to weigh on a case-by-case basis the interests protected by European Union law with a view to determining the conditions under which access to the file is to be permitted or refused?

Pfleiderer

1

If the answer to Question 1 is in the negative:

| 2. | Does European Union law preclude such a national provision where, although the latter applies in the same way to purely national antitrust proceedings and, moreover, does not contain any special rules in respect of documents made available by applicants for leniency, comparable national provisions applicable to other types of proceedings, in particular contentious and non-contentious civil and criminal proceedings, allow access to documents before the court even without the consent of the parties, provided that the third person who is not party to the proceedings adduces prima facie evidence to show that he has a legal interest in obtaining access to the file and that such access is not precluded in the case in question by the overriding interests of another person or overriding public interests? |
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2.

Does European Union law preclude such a national provision where, although the latter applies in the same way to purely national antitrust proceedings and, moreover, does not contain any special rules in respect of documents made available by applicants for leniency, comparable national provisions applicable to other types of proceedings, in particular contentious and non-contentious civil and criminal proceedings, allow access to documents before the court even without the consent of the parties, provided that the third person who is not party to the proceedings adduces prima facie evidence to show that he has a legal interest in obtaining access to the file and that such access is not precluded in the case in question by the overriding interests of another person or overriding public interests?

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(1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).

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