Pfleiderer AG v Bundeskartellamt.
Date: 2011-06-14
19. It must be recalled at the outset that the competition authorities of the Member States and their courts and tribunals are required to apply Articles 101 TFEU and 102 TFEU, where the facts come within the scope of European Union law, and to ensure that those articles are applied effectively in the general interest (see, to that effect, Case C‑439/08 VEBIC [2010] ECR I‑0000, paragraph 56).
20. Neither the provisions of the EC Treaty on competition nor Regulation No 1/2003 lay down common rules on leniency or common rules on the right of access to documents relating to a leniency procedure which have been voluntarily submitted to a national competition authority pursuant to a national leniency programme.
21. With regard to the Commission notices, one on cooperation within the Network of Competition Authorities (OJ 2004 C 101, p. 43) and one on immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17), it should be pointed out that those notices are not binding on Member States. Further, the latter notice relates only to leniency programmes implemented by the Commission itself.
22. Within the ECN, a model leniency programme, designed to achieve the harmonisation of some elements of national leniency programmes, was also drawn up and adopted in 2006. However, that model programme likewise has no binding effect on the courts and tribunals of the Member States.
23. Accordingly, even if the guidelines set out by the Commission may have some effect on the practice of the national competition authorities, it is, in the absence of binding regulation under European Union law on the subject, for Member States to establish and apply national rules on the right of access, by persons adversely affected by a cartel, to documents relating to leniency procedures.
24. However, while the establishment and application of those rules falls within the competence of the Member States, the latter must none the less exercise that competence in accordance with European Union law (see, to that effect, the judgment of 12 November 2009 in Case C‑154/08 Commission  v Spain , paragraph 121 and the case-law cited). In particular, they may not render the implementation of European Union law impossible or excessively difficult (see, to that effect, Case C‑298/96 Oelmühle and Schmidt Söhne [1998] ECR I‑4767, paragraphs 23 and 24 and the case‑law cited) and, specifically, in the area of competition law, they must ensure that the rules which they establish or apply do not jeopardise the effective application of Articles 101 TFEU and 102 TFEU (see, to that effect, VEBIC , paragraph 57).
25. However, as maintained by the Commission and the Member States which have submitted observations, leniency programmes are useful tools if efforts to uncover and bring to an end infringements of competition rules are to be effective and serve, therefore, the objective of effective application of Articles 101 TFEU and 102 TFEU.
26. The effectiveness of those programmes could, however, be compromised if documents relating to a leniency procedure were disclosed to persons wishing to bring an action for damages, even if the national competition authorities were to grant to the applicant for leniency exemption, in whole or in part, from the fine which they could have imposed.
27. The view can reasonably be taken that a person involved in an infringement of competition law, faced with the possibility of such disclosure, would be deterred from taking the opportunity offered by such leniency programmes, particularly when, pursuant to Articles 11 and 12 of Regulation No 1/2003, the Commission and the national competition authorities might exchange information which that person has voluntarily provided.
28. Nevertheless, it is settled case-law that any individual has the right to claim damages for loss caused to him by conduct which is liable to restrict or distort competition (see Case C‑453/99 Courage and Crehan [2001] ECR I‑6297, paragraphs 24 and 26, and Joined Cases C‑295/04 to C‑298/04 Manfredi and Others [2006] ECR I‑6619, paragraphs 59 and 61).
29. The existence of such a right strengthens the working of the Community competition rules and discourages agreements or practices, frequently covert, which are liable to restrict or distort competition. From that point of view, actions for damages before national courts can make a significant contribution to the maintenance of effective competition in the European Union ( Courage and Crehan , paragraph 27).
30. Accordingly, in the consideration of an application for access to documents relating to a leniency programme submitted by a person who is seeking to obtain damages from another person who has taken advantage of such a leniency programme, it is necessary to ensure that the applicable national rules are not less favourable than those governing similar domestic claims and that they do not operate in such a way as to make it practically impossible or excessively difficult to obtain such compensation (see, to that effect, Courage and Crehan , paragraph 29) and to weigh the respective interests in favour of disclosure of the information and in favour of the protection of that information provided voluntarily by the applicant for leniency.
31. That weighing exercise can be conducted by the national courts and tribunals only on a case‑by‑case basis, according to national law, and taking into account all the relevant factors in the case.