Bundeswettbewerbsbehörde v Donau Chemie AG and Others.
Date: 2013-06-06
15. In that regard it should be recalled that in proceedings under Article 267 TFEU, which are based on a clear separation of functions between the national courts and the Court of Justice, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions referred concern the interpretation of European Union law, the Court of Justice is, in principle, bound to give a ruling (see, inter alia, Case C‑561/11 Fédération Cynologique Internationale [2013] ECR I-0000, paragraph 26 and the case-law cited).
16. The Court may refuse to rule on a question referred for a preliminary ruling from a national court only where it is quite obvious that the interpretation of European Union law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Fédération Cynologique Internationale , paragraph 27 and the case-law cited).
20. In order to answer the questions put by the referring court, it should be borne in mind at the outset that just as it imposes burdens on individuals, European Union law is also intended to give rise to rights which become part of their legal assets. Those rights arise not only where they are expressly granted by the Treaties but also by virtue of obligations which they impose in a clearly defined manner both on individuals and on the Member States and the EU institutions (see, to that effect, Joined Cases C-6/90 and C-9/90 Francovich and Others  [1991] ECR I‑5357, paragraph 31, and Case C‑453/99 Courage and Crehan  [2001] ECR I‑6297, paragraph 19 and the case-law cited).
21. In that context, the Court has held previously that since Article 101(1) TFEU produces direct effects in relations between individuals and creates rights for the individuals (Joined Cases C‑295/04 to C‑298/04 Manfredi and Others [2006] ECR I‑6619, paragraph 39 and the case-law cited), the practical effect of the prohibition laid down in that provision would be put at risk if it were not open to any individual to claim damages for loss caused to him by a contract or by conduct liable to restrict or distort competition ( Courage and Crehan , paragraph 26).
22. Moreover, in accordance with settled case-law, the national courts whose task it is to apply the provisions of EU law in areas within their jurisdiction must ensure that those rules take full effect and must protect the rights which they confer on individuals (see, inter alia, Case 106/77 Simmenthal  [1978] ECR 629, paragraph 16; Case C-213/89 Factortame and Others  [1990] ECR I-2433, paragraph 19; Courage and Crehan , paragraph 25; and Manfredi and Others , paragraph 89).
23. Thus, first of all, the right of any individual to claim damages for loss caused to him by conduct which is liable to restrict or distort competition contrary to, inter alia, Article 101(1) TFEU strengthens the working of the Community competition rules, since it discourages agreements or practices, frequently covert, which are liable to restrict or distort competition, thereby making a significant contribution to the maintenance of effective competition in the European Union (see, to that effect, Courage and Crehan , paragraphs 26 and 27; Manfredi and Others , paragraph 91; and Pfleiderer , paragraph 28).
25. In the absence of EU rules governing the matter, it is for the domestic legal system of each Member State to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law.
26. Regarding, more specifically, the detailed procedural rules governing actions for damages arising from infringement of the competition rules, it is for the Member States to establish and apply national rules on the right of access, by persons believing themselves to be adversely affected by a cartel, to documents relating to national proceedings concerning that cartel (see, to that effect, Pfleiderer , paragraph 23).
27. However, while the establishment and application of those rules falls within the competence of the Member States, they must none the less exercise that competence in accordance with European Union law. In particular, the rules applicable to actions for safeguarding rights which individuals derive from the direct effect of EU law must not be less favourable than those governing similar domestic actions (principle of equivalence) and must not make it in practice impossible or excessively difficult to exercise rights conferred by EU law (principle of effectiveness) (see Courage and Crehan , paragraph 29; Manfredi , paragraph 62; and Case C-397/11 Jörös  [2013] ECR I-0000, paragraph 29). Specifically, in the area of competition law, those rules must not jeopardise the effective application of Articles 101 TFEU and 102 TFEU (see Pfleiderer , paragraph 24, and Case C‑439/08 VEBIC  [2010] ECR I‑12471, paragraph 57).
30. In order to answer that question, it should be observed that, in exercising their powers for the purpose of applying national rules on the right of access, by persons believing themselves to be adversely affected by a cartel, to documents relating to national proceedings concerning that cartel, the national courts must weigh up the respective interests in favour of disclosure of the information and in favour of the protection of that information (see, to that effect, Pfleiderer , paragraph 30).
32. On the one hand, it is clear that a rule under which access to any document forming part of competition proceedings must be refused is liable to make it impossible or, at the very least, excessively difficult to protect the right to compensation conferred on parties adversely affected by an infringement of Article 101 TFEU. This is the case inter alia when only access to the documents relating to the proceedings before the competent national competition authorities enables those parties to obtain the evidence needed to establish their claim for damages. Where those parties have no other way of obtaining that evidence, a refusal to grant them access to the file renders nugatory the right to compensation which they derive directly from European Union law.
33. On the other hand, it should be observed that a rule of generalised access under which any document relating to competition proceedings must be disclosed to a party requesting it on the sole ground that that party is intending to bring an action for damages is not necessary in order to ensure effective protection of the right to compensation enjoyed by that party, as it is highly unlikely that the action for damages must be based on all of the evidence in the file relating to those proceedings. Furthermore, that rule could lead to infringement of other rights conferred by EU law, inter alia, on the undertakings concerned, such as the right to protection of professional secrecy or of business secrecy, or on the individuals concerned, such as the right to protection of personal data. Lastly, such generalised access is also liable to adversely affect public interests, such as the effectiveness of anti-infringement policies in the area of competition law, because it could deter parties involved in infringements of Articles 101 TFEU and 102 TFEU from cooperating with the competition authorities (see, to that effect, Pfleiderer , paragraph 27).
34. It follows that, as the Court has held previously, the weighing-up of interests justifying disclosure of information and the protection of that information 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 ( Pfleiderer , paragraph 31).
42. The Court has recognised that leniency programmes are useful tools if efforts to uncover and bring an end to infringements of competition rules are to be effective and thus serve the objective of effective application of Articles 101 TFEU and 102 TFEU. The effectiveness of those programmes could be compromised if documents relating to leniency proceedings were disclosed to persons wishing to bring an action for damages. 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 ( Pfleiderer , paragraphs 25 to 27).
43. It is clear, however, that although those considerations may justify a refusal to grant access to certain documents contained in the file of national competition proceedings, they do not necessarily mean that that access may be systematically refused, since any request for access to the documents in question must be assessed on a case-by-case basis, taking into account all the relevant factors in the case (see, to that effect, Pfleiderer , paragraph 31).
44. In the course of that assessment, it is for the national courts to appraise, firstly, the interest of the requesting party in obtaining access to those documents in order to prepare its action for damages, in particular in the light of other possibilities it may have.
46. In particular, as regards the public interest of having effective leniency programmes referred to by the Austrian Government in the present case, it should be observed that, given the importance of actions for damages brought before national courts in ensuring the maintenance of effective competition in the European Union (see Courage and Crehan , paragraph 27), the argument that there is a risk that access to evidence contained in a file in competition proceedings which is necessary as a basis for those actions may undermine the effectiveness of a leniency programme in which those documents were disclosed to the competent competition authority cannot justify a refusal to grant access to that evidence.