1 This request for a preliminary ruling concerns the interpretation of Article 6(6) and (7) and Article 7(1) of Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (OJ 2014 L 349, p. 1), and of Article 31(3) of Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market (OJ 2019 L 11, p. 3).
2 The request has been made in proceedings relating to the objection made by FL und KM Baugesellschaft m.b.H. & Co. KG et S AG regarding the addition to the file of a criminal investigation conducted by the Zentrale Staatsanwaltschaft zur Verfolgung von Wirtschaftsstrafsachen und Korruption (Central Public Prosecutor’s Office for economic crime and acts of corruption, Austria) (‘the Public Prosecutor’s Office’), of leniency statements and settlement submissions made by those companies and of the annexes thereto.
3 Recital 26 of Directive 2014/104 is worded as follows: ‘Leniency programmes and settlement procedures are important tools for the public enforcement of Union competition law as they contribute to the detection and efficient prosecution of, and the imposition of penalties for, the most serious infringements of competition law. Furthermore, as many decisions of competition authorities in cartel cases are based on a leniency application, and damages actions in cartel cases generally follow on from those decisions, leniency programmes are also important for the effectiveness of actions for damages in cartel cases. Undertakings might be deterred from cooperating with competition authorities under leniency programmes and settlement procedures if self-incriminating statements such as leniency statements and settlement submissions, which are produced for the sole purpose of cooperating with the competition authorities, were to be disclosed. Such disclosure would pose a risk of exposing cooperating undertakings or their managing staff to civil or criminal liability under conditions worse than those of co-infringers not cooperating with the competition authorities. To ensure undertakings’ continued willingness to approach competition authorities voluntarily with leniency statements or settlement submissions, such documents should be exempted from the disclosure of evidence. That exemption should also apply to verbatim quotations from leniency statements or settlement submissions included in other documents. Those limitations on the disclosure of evidence should not prevent competition authorities from publishing their decisions in accordance with the applicable Union or national law. In order to ensure that that exemption does not unduly interfere with injured parties’ rights to compensation, it should be limited to those voluntary and self-incriminating leniency statements and settlement submissions.’
4 Article 1 of that directive, entitled ‘Subject matter and scope’, provides: ‘1. This Directive sets out certain rules necessary to ensure that anyone who has suffered harm caused by an infringement of competition law by an undertaking or by an association of undertakings can effectively exercise the right to claim full compensation for that harm from that undertaking or association. … 2. This Directive sets out rules coordinating the enforcement of the competition rules by competition authorities and the enforcement of those rules in damages actions before national courts.’
5 Article 2 of that directive contains the following definitions:
6 Article 6 of Directive 2014/104, entitled ‘Disclosure of evidence included in the file of a competition authority’, provides, in paragraphs 6 and 7 thereof: ‘6. Member States shall ensure that, for the purpose of actions for damages, national courts cannot at any time order a party or a third party to disclose any of the following categories of evidence: 7. A claimant may present a reasoned request that a national court access the evidence referred to in point (a) or (b) of paragraph 6 for the sole purpose of ensuring that their contents correspond to the definitions in points (16) and (18) of Article 2. In that assessment, national courts may request assistance only from the competent competition authority. The authors of the evidence in question may also have the possibility to be heard. In no case shall the national court permit other parties or third parties access to that evidence.’
7 Article 7 of that directive, entitled ‘Limits on the use of evidence obtained solely through access to the file of a competition authority’, provides, in paragraph 1 thereof: ‘Member States shall ensure that evidence in the categories listed in Article 6(6) which is obtained by a natural or legal person solely through access to the file of a competition authority is either deemed to be inadmissible in actions for damages or is otherwise protected under the applicable national rules to ensure the full effect of the limits on the disclosure of evidence set out in Article 6.’
8 Recitals 11, 50 and 72 of Directive 2019/1 are worded as follows: … …
9 Article 1 of that directive, entitled ‘Subject matter and scope’, provides, in paragraphs 1 and 2 thereof: ‘1. This Directive sets out certain rules to ensure that national competition authorities have the necessary guarantees of independence, resources, and enforcement and fining powers to be able to effectively apply Articles 101 and 102 TFEU … 2. This Directive covers the application of Articles 101 and 102 TFEU and the parallel application of national competition law to the same case. As regards Article 31(3) and (4) of this Directive, this Directive also covers the application of national competition law on a stand-alone basis.’
10 Article 2 of Directive 2019/1 contains, in points (6), (9) and (16) to (18) thereof, the following definitions:
11 Article 13 of that directive, entitled ‘Fines on undertakings and associations of undertakings’, provides, in paragraph 4: ‘This Article is without prejudice to national laws allowing for the imposition of sanctions in criminal judicial proceedings provided that the application of such laws does not affect the effective and uniform enforcement of Articles 101 and 102 TFEU.’
12 Article 31 of Directive 2019/1, entitled ‘Access to file by parties and limitations on the use of information’, states, in paragraphs 3 and 4, that: ‘3. Member States shall ensure that access to leniency statements or settlement submissions is only granted to parties subject to the relevant proceedings and only for the purposes of exercising their rights of defence. 4. Member States shall ensure that the party having obtained access to the file of the enforcement proceedings of the national competition authorities may only use information taken from leniency statements and settlement submissions where necessary to exercise its rights of defence in proceedings before national courts in cases that are directly related to the case for which access has been granted, and only where such proceedings concern:
13 Paragraph 22 of the Bundes-Verfassungsgesetz (Federal Constitutional Law) provides that: ‘All bodies of the Federal State, the Länder, the municipalities and associations of municipalities … are required, within the scope of their legal spheres of action, to provide each other with mutual assistance.’
14 Article 168b(1) of the Strafgesetzbuch (Criminal Code) provides: ‘Any person who, during a procurement procedure, submits a request to participate, submits a bid or participates in negotiations on the basis of an unlawful agreement designed to induce the contracting authority to accept a particular bid shall be liable to a custodial sentence of up to three years.’
15 Article 49 of the Strafprozessordnung (Code of Criminal Procedure) is worded as follows: ‘(1) The person under investigation has the right (2) The person under investigation has the right that victims, civil parties or private accusers have access to the file (Article 68) only in so far as is necessary to protect their interests.’
16 Article 51 of that code provides: ‘(1) The person under investigation has the right to be informed of the results of the investigation and of the main proceedings available to the criminal police, the public prosecutor’s office and the judiciary. … (2) If there is a risk as referred to in Paragraph 162, it is permissible to exclude personal data and other elements that would make it possible to draw conclusions about the identity or highly personal living conditions of the person under investigation from access to the file, and to issue copies in which these elements have been redacted. Furthermore, access to the file may only be restricted before the end of the investigation proceedings, and only in so far as there are particular circumstances which create a concern that immediate knowledge of certain materials in the file would compromise the purpose of the investigation. … …’
17 Under Article 65 of that code:
18 Article 66 of the Code of Criminal Procedure provides: ‘(1) Victims - regardless of their status as civil parties - have the right …
19 Article 68 of that code is worded as follows: ‘(1) The civil party and the private accuser have the right to consult the file in so far as their interests are concerned; … Furthermore, consultation of the file may be refused or restricted only in so far as it would compromise the purpose of the investigation or an uninfluenced witness statement. (2) This right of access to the file is also granted to victims who are not civil parties to the proceedings. …’
20 Article 76 of that code provides: ‘(1) The criminal police, the public prosecutor’s office and the courts are entitled, in the performance of their duties under this law, to call directly upon the assistance of all public authorities and services of the Federal State, the Länder and the municipalities, as well as other public bodies and institutions established by law. … (2) Requests from the criminal police authorities, public prosecutors and courts concerning criminal proceedings against a specific person may only be refused on the grounds of legal obligations of confidentiality or the fact that the request relates to personal data which are being processed automatically if those obligations are expressly imposed on the criminal courts as well, or if the response conflicts with overriding public interests, which must be explained and justified in detail. …’
21 The applicants in the main proceedings are construction companies against which criminal investigation proceedings were initiated by the public prosecutor’s office. Those proceedings also involve numerous other companies and their managers. Those natural and legal persons are suspected of having, between 2006 and 2020, systematically and repeatedly submitted requests to participate in public procurement procedures, submitted bids or conducted negotiations based on unlawful agreements designed to induce contracting authorities to accept a particular bid.
22 In parallel with that criminal investigation, the Federal Competition Authority initiated cartel proceedings with regard to those persons before the Oberlandesgericht Wien als Kartellgericht (Higher Regional Court, Vienna, in its capacity as the Austrian cartel court, Austria), in order for fines to be imposed on them. In the context of those cartel proceedings, on 2 July 2019, the applicants in the main proceedings submitted a leniency application in accordance with national legislation on leniency under competition law. As a result of their participation in the leniency programme, on 14 July 2021, the Federal Competition Authority filed an application before that court for a reduction in the fine imposed on the applicants in the main proceedings. On 21 October 2021, that court imposed a reduced fine on those applicants, in accordance with that application for a reduction.
23 On 22 July 2021, in the context of mutual assistance, the public prosecutor’s office requested from the cartel court a copy of the file relating to the cartel proceedings. That court granted the public prosecutor’s office’s request and transmitted that file to it, pursuant to Article 22 of the Federal Constitutional Law and in accordance with the case-law of the Oberster Gerichtshof (Supreme Court, Austria). According to that case-law, the provision of the Kartellgesetz (Law on cartels) in force at the time of the facts in the main proceedings which limited access by third parties to the files of the Austrian cartel court was not applicable to the public prosecutor’s office and did not lay down a legal obligation of confidentiality which was also applicable to the criminal authorities.
24 On 7 October 2021, the public prosecutor’s office also requested, in the context of administrative assistance, the Federal Competition Authority to provide it with certain documents relating to the administrative procedure concerning the cartel at issue. On 8 October 2021, the Federal Competition Authority granted that request, relying on the protection laid down in Directive 2019/1 for the documents transmitted.
25 The public prosecutor’s office added the relevant documents submitted by the Federal Competition Authority to the criminal investigation file, including leniency statements and settlement submissions, together with their annexes. On 23 December 2021, the public prosecutor’s office instructed the police to carry out further investigations on the basis of the information obtained thereby.
26 The applicants in the main proceedings requested the public prosecutor’s office not to add those documents to the file, not to use them and, in any event, to exclude them permanently from access to the file in relation to all persons under investigation and in relation to the injured persons. The public prosecutor’s office did not comply with that request. It left those documents in the file and refused permanently to exclude access to them. However, it excluded some of the documents transmitted, in particular leniency statements and settlement submissions from access to the file in relation to those persons. That exclusion was provisional, that is to say, pending a definitive decision by the cartel court on the question of access to those documents.
27 On 3 February 2022, the applicants in the main proceedings lodged an objection to that refusal decision before the public prosecutor’s office. By judgment of 1 April 2022, the Landesgericht für Strafsachen Wien (Regional Court for Criminal Matters, Vienna, Austria), acting as the first instance court, dismissed that objection and found, inter alia, that the addition to the criminal file by the public prosecutor’s office of leniency statements and settlement submissions concerned together with their annexes was lawful. It also ruled that the request made by the public prosecutor’s office to the police to carry out investigations, based on those documents, and the decision on the provisional restriction of access to the file in relation to persons under investigation and injured parties, were also lawful.
28 The applicants in the main proceedings brought an appeal against that judgment before the Oberlandesgericht Wien (Higher Regional Court, Vienna), which is the referring court. Before the referring court, they claim that the protection against any disclosure of leniency statements, settlement submissions and information obtained from them is intended to favour persons lodging a leniency statement in damages and criminal proceedings. That privilege is regarded, both by the EU legislature and by the national legislature, as a necessary incentive for the leniency programme to function properly. Article 31(3) of Directive 2019/1 establishes the principle that any form of disclosure of those documents is prohibited. Article 13(4) of Directive 2019/1, which, in order to ensure the effectiveness of leniency programmes in competition matters, establishes the primacy of competition law over national criminal law, also supports that interpretation. Potentially injured parties obtaining information in the context of criminal proceedings would undermine the absolute protection of those documents and would not be consistent with EU law, in particular Directives 2014/104 and 2019/1.
29 The referring court states that, for the purposes of obtaining information which is important for an investigation, it is possible to have recourse to mutual administrative and judicial assistance and that, in that respect, all public authorities are required to assist each other. Such assistance can be refused or restricted vis-à-vis the criminal authorities only if explicitly laid down in law. In addition, the public prosecutor’s office is required to add all the relevant documents to the file. In the Austrian legal system, there is no express restriction on mutual administrative and judicial assistance between (i) a cartel court and the competition authorities, and (ii) the public prosecutor’s office and the criminal courts.
30 However, the Code of Criminal Procedure provides for a differentiated system of access to the file for the various parties to criminal proceedings. In the light of his or her right to be heard, the person under investigation could, in principle, have access to the entire file concerning him or her. A restriction of access to the file for such persons is possible only in exceptional cases and where absolutely necessary, which are not, however, found in the present case.
31 The referring court points out that, in addition to persons under investigation, victims and civil parties in criminal proceedings must, in principle, also have access to the file where that is necessary for the defence of their interests. All the parties to the criminal investigation proceedings concerned are thus, in principle, able to access leniency statements and settlement submissions presented in the context of cartel proceedings.
32 It would therefore appear that the public prosecutor’s office legitimately added to the file the materials relating to the cartel proceedings requested in the context of the mutual administrative and judicial assistance at issue in the main proceedings, including the leniency statements and the settlement submissions submitted by the applicants in the main proceedings.
33 According to the referring court, the wording of Article 6(6) and (7) of Directive 2014/104 and of Article 31(3) of Directive 2019/1 respectively supports the interpretation that the protection against disclosure of leniency statements and settlement submissions, within the meaning of those directives, must apply in relation to all third parties, and therefore also to criminal courts or authorities and to the parties to the proceedings conducted by them. That interpretation is also supported by Article 13(4) of Directive 2019/1.
34 However, under national law, the cartel court and the Federal Competition Authority are required to transmit the files in their possession to criminal authorities. In the view of the referring court, that has significant negative consequences for leniency applicants in the context of competition law and undermines the objective of protecting leniency statements and settlement submissions from any disclosure. Therefore, the view of the applicants in the main proceedings that EU law provides for absolute protection of leniency statements, which is broader than mere protection in competition proceedings, cannot be regarded as unfounded. The possibility for persons under investigation and victims in criminal proceedings to consult the file, laid down in Austrian law, precludes such absolute protection.
35 It is therefore necessary to answer, in the main proceedings, the questions whether materials in the file relating to a cartel may be added to the file relating to a criminal investigation and, if so, which materials may thus be added and who may consult them.
36 Consequently, the first question referred for a preliminary ruling seeks to determine whether the protection provided for in Directives 2014/104 and 2019/1 afforded to leniency statements, settlement submissions and information obtained from them, must be interpreted as meaning that it is absolute, that is to say that it also applies with regard to criminal authorities. A positive response to that question would result in criminal authorities being prohibited from including those documents in the file and from ordering further investigations on the basis of those documents. That would follow - where those directives have not been fully transposed into national law within the time limit laid down for that purpose - from the direct applicability of the relevant provisions of those directives.
37 If the answer to that question is in the affirmative, the second question referred for a preliminary ruling seeks to determine whether that possibly absolute protection covers, in addition to leniency statements and settlement submissions, documents which the leniency applicant has produced in order to explain, specify in detail and prove the content of those statements or submissions.
38 If the first question is answered in the negative, it is necessary to determine whether the protection laid down in Directives 2014/104 and 2019/1 has the effect, at least, of permanently prohibiting other persons under investigation and/or other parties to the criminal proceedings, such as injured persons, from having access to those statements and submissions.
39 In those circumstances, the Oberlandesgericht Wien (Higher Regional Court, Vienna) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
40 It should be recalled that the preliminary ruling procedure provided for in Article 267 TFEU sets up a dialogue between one court and another, specifically between the Court of Justice and the courts and tribunals of the Member States, with the object of securing uniform interpretation of EU law and ensuring its consistency, its full effect and its autonomy. That procedure thus functions as an instrument of cooperation between the Court of Justice and national courts and tribunals, by means of which the former provides the latter with the points of interpretation of EU law which they need in order to decide the disputes before them (judgment of 5 December 2017, M.A.S. and M.B., C‑42/17, EU:C:2017:936, paragraphs 22 and 23 and the case-law cited).
41 It should be noted here that the Court, when answering questions referred for a preliminary ruling, must take account, under the division of jurisdiction between the EU judicature and the national courts and tribunals, of the factual and legislative context of the questions as described in the order for reference (judgment of 5 December 2017, M.A.S. and M.B., C‑42/17, EU:C:2017:936, paragraph 24 and the case-law cited).
42 To that end, the Court should, where necessary, reformulate the questions referred to it. The Court has a duty to interpret all provisions of EU law which national courts require in order to decide on the actions pending before them, even if those provisions are not expressly indicated in the questions referred to the Court by those courts (judgment of 28 April 2022, NovaText, C‑531/20, EU:C:2022:316, paragraph 21 and the case-law cited).
43 By its questions in the present case, the referring court is seeking clarification on the scope of the provisions of EU competition law, in particular, of Article 6(6) and (7) and Article 7(1) of Directive 2014/104 and of Article 31(3) of Directive 2019/1.
44 However, an interpretation of those directives can be relevant to the outcome of the dispute in the main proceedings only if that dispute falls within their scope.
45 As regards the scope of Directive 2014/104, it should be noted, in the first place, that that directive, in accordance with Article 1(2) thereof, lays down certain rules governing actions for damages brought at national level for infringements of the competition law provisions of the Member States and of the European Union. The result of this is that the material scope of that directive, including that of Articles 6 and 7 thereof, which govern, respectively, the disclosure of evidence in the file of a competition authority and the limits on the use of evidence obtained through access to that file, is limited solely to actions for damages brought for infringements of the competition rules and, therefore, does not extend to other types of action (see, to that effect, judgment of 20 April 2023, Repsol Comercial de Productos Petrolíferos, C‑25/21, EU:C:2023:298, paragraphs 30 and 31).
46 Accordingly, that directive does not govern either the issue of the transfer of the file from one competition authority to another authority or that of access to that file other than in the actions for damages referred to above. In that regard, it is apparent from the referring court’s answer to a request for clarification from the Court that the case in the main proceedings does not concern such an action, since it concerns an objection lodged in the context of criminal investigation proceedings in which the offence concerned and, therefore, the claims of the injured parties relating thereto do not concern an infringement of competition law. It follows that, since the dispute in the main proceedings does not fall within the scope of Directive 2014/104, the interpretation of that directive is not relevant to the outcome of the dispute in the main proceedings.
47 As regards, in the second place, the scope of Directive 2019/1, it is apparent from Article 1(1) of that directive that it seeks, in essence, to ensure the effective application of Articles 101 and 102 TFEU. That Article 1 provides, in paragraph 2 thereof, that that directive covers, first, the parallel application of those articles and of national competition law in a case and, second, as regards matters governed by Article 31(3) and (4) of that directive, the application of national competition law also on a stand-alone basis. In accordance with Article 2(1)(6) of Directive 2019/1, that right covers provisions of national law that predominantly pursue the same objective as Articles 101 and 102 TFEU.
48 In that regard, it should be noted, as regards the first question, that, like Directive 2014/104, Directive 2019/1 does not govern the transfer of the file from a competition authority to another authority in the context of a mechanism for mutual administrative and judicial assistance, such as that at issue in the main proceedings. The parties’ access to the file, which, in accordance with its title, is laid down in Article 31 of that directive, and such mutual administrative assistance are, as the Advocate General also observed in point 59 of his Opinion, separate legal aspects. It follows that Directive 2019/1 is not relevant for the purposes of answering the first question.
49 However, the leniency statements and the settlement submissions at issue in the main proceedings were drawn up and submitted to the Federal Competition Authority in the context of the proceedings conducted by it, which, according to the information provided by the referring court, concerned the application of Article 101 TFEU and national competition law pursuing the same objectives as that article.
50 Therefore, in order to safeguard the effectiveness of Article 101 TFEU, it is necessary to ascertain whether that article precludes national legislation, such as that at issue in the main proceedings, providing for a mechanism of mutual administrative assistance. It must therefore be held that, by its first question, the referring court is asking the Court to interpret Article 101 TFEU.
51 The second and third questions concern, first, the scope of the protection afforded by EU competition law to the various materials in a file before a national competition authority and, second, the right of access to documents and information forming part of that file by various parties to criminal investigation proceedings.
52 In that regard, it should be noted that, under Article 31(3) of Directive 2019/1, Member States are to ensure that access to leniency statements or settlement submissions is only granted to parties subject to the relevant proceedings and only for the purposes of exercising their rights of defence.
53 As is apparent from paragraph 49 above, the leniency statements and the settlement submissions at issue in the main proceedings were drawn up in accordance with EU competition law and national law pursuing the same objectives as EU law.
54 Therefore, given that (i) as stated in Article 1(2) of Directive 2019/1, that directive covers, with regard to matters governed by Article 31(3) and (4) thereto, the application of national competition law on a stand-alone basis, and, (ii) as the Advocate General stated in point 55 of his Opinion, Article 31(3) affords protection to such statements and submissions, which must be ensured irrespective of the context in which those statements and submissions are used, the interpretation of Article 31(3) is relevant for the purposes of answering the second and third questions.
55 Those considerations are borne out, first, by the fact that, as is apparent from recitals 50 and 72 of Directive 2019/1, the EU legislature reiterated the importance of leniency programmes for the effective application of Articles 101 and 102 TFEU and the need, in order to ensure those programmes are effective, to mitigate the risk of disclosure of self-incriminating material outside the context of the investigation for the purposes of which such material was provided. Second, as is apparent from the travaux préparatoires for that directive, Article 31(3) thereof is intended to supplement the protection afforded to leniency statements and settlement submissions by Directive 2014/104, which had harmonised the protection of those documents in the context of actions for damages before national courts for infringements of the competition law provisions of the Member States or of the European Union, but which did not, however, address other scenarios, such as the use of those documents in other civil, administrative or criminal proceedings or public access to those documents, since, in those other scenarios, the level of protection afforded to such documents differed significantly from one Member State to another.
56 In addition, in the light of the information contained in paragraphs 49 and 53 above and, in particular, of the fact that the leniency statements and the settlement submissions at issue in the main proceedings were drawn up and submitted to the Federal Competition Authority pursuant, inter alia, to Article 101 TFEU and, therefore, in the context of the implementation of EU competition law, as referred to in Article 51(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’), it should be noted that Article 31(3) of Directive 2019/1 must also be interpreted in the light of the provisions of the Charter.
57 In the light of the foregoing preliminary considerations, it must be held that, by its first question, the referring court is asking, in essence, whether Article 101 TFEU must be interpreted as precluding national legislation under which the national competition authority and the national cartel court are required, in the context of the mechanism for administrative assistance laid down in that legislation, to forward to the public prosecutor’s office, at the latter’s request, the files of that competition authority and of that cartel court, including leniency statements and settlement submissions in those files, and the information obtained from them.
58 It should be recalled that, according to settled case-law, just as it imposes burdens on individuals, EU law is also intended to give rise to rights which become part of their legal heritage. 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 (judgment of 20 April 2023, Repsol Comercial de Productos Petrolíferos, C‑25/21, EU:C:2023:298, paragraph 49 and the case-law cited).
59 Moreover, Article 101(1) TFEU produces direct legal effects in relations between individuals and directly creates rights for individuals which national courts must protect (see, to that effect, judgment of 20 April 2023, Repsol Comercial de Productos Petrolíferos, C‑25/21, EU:C:2023:298, paragraph 50 and the case-law cited).
60 In the present case, as is apparent from paragraph 49 above, the leniency statements and the settlement submissions at issue in the main proceedings appear to have been drawn up pursuant to Article 101 TFEU and a national provision pursuing, in essence, the same objectives as Article 101 TFEU.
61 However, a mechanism for administrative assistance, such as that laid down in the national legislation concerned, which entails an obligation, for public bodies, to provide each other with mutual assistance within their respective areas of competence and pursuant to which the competition authority and the cartel court are required to transmit to the public prosecutor’s office the files requested by it, including leniency statements and settlement submissions, even for the purposes of criminal proceedings which do not concern an infringement of competition law, is not in itself governed by EU law.
62 In that regard, it should, however, be recalled that, while establishing such a mechanism for administrative assistance falls within the competence of the Member States, the latter must exercise that competence in a manner consistent with EU law and, specifically, where competition law is likely to be affected, they must ensure that the rules which they establish or apply do not jeopardise the effective application of Articles 101 and 102 TFEU (see, to that effect, judgment of 30 January 2025, Caronte & Tourist, C‑511/23, EU:C:2025:42, paragraph 44 and the case-law cited).
63 It should also be recalled that, as the Court has already held, 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. The effectiveness of those programmes could be compromised if the persons involved in infringements of competition law were deterred from taking the opportunity offered by such leniency programmes when faced with the possibility of a disclosure of documents relating to a leniency procedure to persons other than those for whom those documents were submitted, such as persons wishing to bring an action for damages (see, to that effect, judgments of 14 June 2011, Pfleiderer, C‑360/09, EU:C:2011:389, paragraphs 25 to 27, and of 6 June 2013, Donau Chemie and Others, C‑536/11, EU:C:2013:366, paragraph 42).
64 Furthermore, as the Advocate General observed, in points 66 and 69 of his Opinion respectively, first, the practical effect of Article 101 TFEU may also be compromised by proceedings which are not intended to enforce that article and, second, although Directives 2014/104 and 2019/1 do not apply to a mechanism for administrative assistance between national authorities of the same Member State such as that at issue in the main proceedings, the risks associated with the disclosure of self-incriminating documents, which are identified by those directives, and which could weaken the incentive for potential leniency applicants to cooperate with the national competition authorities, also arise in the context of that mechanism.
65 It must therefore be observed that such a mechanism for administrative assistance must be structured in such a way as to preserve the effectiveness of Article 101 TFEU, in particular by preventing the protection afforded to them by EU law from being rendered meaningless as a result of the access to leniency statements and settlement submissions.
66 In the light of the foregoing considerations, the answer to the first question is that Article 101 TFEU must be interpreted as not precluding national legislation under which the national competition authority and the national cartel court are required, in the context of the mechanism for administrative assistance laid down in that legislation, to transmit to the public prosecutor’s office, upon its request, the files of that competition authority and of that cartel court, including leniency statements and settlement submissions in those files, as well as the information obtained from them, provided that such a mechanism does not undermine the effectiveness of that article.
67 In the light of the preliminary considerations set out in paragraphs 40 to 56 above, it must be held that, by its second question, the referring court is, in essence, asking whether Article 31(3) of Directive 2019/1 must be interpreted as meaning that the protection which it affords to leniency statements and to settlement submissions also covers documents and information which have been provided in order to explain, specify in detail and prove the content of those statements and submissions.
68 In that regard, Article 2(1)(17) of Directive 2019/1 defines the concept of ‘leniency statement’ as an oral or written presentation voluntarily provided by, or on behalf of, an undertaking or a natural person to a national competition authority or a record thereof, drawn up specifically for submission to the authority, describing the knowledge of that undertaking or natural person of a cartel and describing its role therein, with a view to obtaining immunity or a reduction of fines under a leniency programme. The concept of ‘settlement submission’ is defined, in Article 2(1)(18) as a voluntary presentation by, or on behalf of, an undertaking to such a competition authority, describing the undertaking’s acknowledgement of, or its renunciation to dispute, its participation in an infringement of competition law and its responsibility for that infringement, which was drawn up specifically to enable that competition authority to apply a simplified or expedited procedure.
69 It follows that Article 31(3) of Directive 2019/1 protects documents whose content, purpose and circumstances in which they were drafted, correspond to the definitions provided for in that directive.
70 According to those definitions, leniency statements and settlement submissions do not cover pre-existing information, which, according to Article 2(1)(17) of Directive 2019/1, corresponds to any evidence that exists irrespective of the enforcement proceedings, whether or not such information is in the file of a competition authority, such as documents dating from the time of the infringement concerned.
71 In addition, it should be noted that Article 31(3) of Directive 2019/1, which concerns access to the file of a competition authority, expressly refers to leniency statements and settlement submissions, and limits access to such statements and submissions to the parties to the relevant proceedings and only for the purposes of exercising their rights of defence.
72 It must therefore be observed that that provision does not concern access to the other materials in that file, such as the annexes and the information obtained from those statements and submissions intended to explain, specify in detail and prove the content of those documents.
73 That observation is supported by settled case-law according to which any individual has the right to claim damages for loss caused to him by anti-competitive conduct. Such a right strengthens the working of EU 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 (judgment of 14 June 2011, Pfleiderer, C‑360/09, EU:C:2011:389, paragraphs 28 and 29).
74 Furthermore, disputes concerning infringements of EU competition law and national competition law are characterised, in principle, by information asymmetry to the detriment of the injured party, which makes it more difficult for that person to obtain the information necessary to bring an action for damages than for the competition authorities to obtain the information necessary for exercising their powers to apply competition law (judgment of 22 June 2022, Volvo and DAF Trucks, C‑267/20, EU:C:2022:494, paragraph 55).
75 Moreover, the Court has ruled that, whereas the publication, in the form of verbatim quotations, of a leniency statement is not permitted in any circumstances, the publication of information from documents provided by an undertaking in support of such a statement is authorised, subject to compliance with the protection owed, in particular, to business secrets, professional secrecy and other confidential information (see, to that effect, judgment of 14 March 2017, Evonik Degussa v Commission, C‑162/15 P, EU:C:2017:205, paragraph 87).
76 It is apparent from the foregoing that the level of protection afforded to documents drawn up on the basis of leniency statements and settlement submissions, or annexed to those statements and submissions, and the level of protection afforded to the information obtained therefrom is not the same as that afforded by EU competition law to those statements and submissions.
77 In the light of those considerations, the answer to the second question is that Article 31(3) of Directive 2019/1 must be interpreted as meaning that the protection which it affords to leniency statements and to settlement submissions does not cover documents and information provided in order to explain, specify in detail and prove the content of those statements or submissions.
78 In the light of the preliminary considerations set out in paragraphs 40 to 56 above, it must be held that, by its third question, the referring court is, in essence, asking whether Article 31(3) of Directive 2019/1, read in the light of the first and second subparagraphs of Article 47 and Article 48(2) of the Charter, must be interpreted as precluding national legislation under which, in the context of criminal proceedings which do not concern an infringement of competition law, persons under investigation who are not the authors of those statements or submissions, as well as other parties to those criminal proceedings, in particular, persons harmed by the infringement of competition law concerned who seek compensation for the harm caused by that infringement have the right of access to leniency statements and settlement submissions, drawn up for the purposes of proceedings before a national competition authority and transmitted to national criminal authorities.
79 In that regard, as the Advocate General observed in point 96 of his Opinion, the protection of leniency statements and settlement submissions pursues two intrinsically linked objectives, namely to protect the persons concerned against the risks associated with the disclosure of self-incriminating documents and to ensure that access to such documents does not adversely affect public interests, such as the effectiveness of the policy of preventing infringements of competition law, in so far as generalised access to those documents could deter parties involved in infringements of Articles 101 and 102 TFEU from cooperating with the national competition authorities.
80 In the present case, it is apparent from the file before the Court that, according to the national legislation applicable to the dispute in the main proceedings, both the parties under investigation in the context of criminal investigation proceedings and the other parties to those proceedings, such as the persons harmed by the infringement of competition law concerned who seek compensation for the harm caused by that infringement, have the right of access to leniency statements and to settlement submissions attached to the file relating to those proceedings.
81 As is apparent from paragraphs 49, 53, 56 and 60 above, the leniency statements and the settlement submissions at issue in the main proceedings were drawn up pursuant to EU competition law and the protection afforded to them by Article 31(3) of Directive 2019/1 must be ensured irrespective of the context in which they are used. Consequently, it is necessary to ascertain whether that provision precludes national legislation such as that referred to in the preceding paragraph above.
82 In that regard, as regards, in the first place, access to leniency statements and settlement submissions by persons under investigation who are not the authors of such documents, it must be recalled that, in accordance with a general principle of interpretation, Article 31(3) of Directive 2019/1 must be interpreted, as far as possible, in such a way as not to affect its validity and in conformity with EU primary law as a whole and, in particular, with the provisions of the Charter (see, to that effect, judgment of 16 November 2023, Ligue des droits humains (Verification by the supervisory authority of data processing), C‑333/22, EU:C:2023:874, paragraph 57), in the present case, with Article 47 of the Charter, which enshrines the right to an effective remedy and to a fair trial, and with Article 48(2) thereof, which seeks to ensure respect for the rights of the defence.
83 Furthermore, in accordance with Article 52(3) of the Charter, the rights contained therein have the same meaning and scope as the corresponding rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (ECHR), which does not preclude EU law from affording more extensive protection. When interpreting the rights guaranteed by the first and second paragraphs of Article 47 and by Article 48(2) of the Charter, the Court must, therefore, take account of the corresponding rights guaranteed by Articles 6 and 13 ECHR, as interpreted by the European Court of Human Rights, as the minimum threshold of protection (judgment of 22 June 2023, K.B. and F.S. (Raising ex officio of an infringement in criminal proceedings), C‑660/21, EU:C:2023:498) paragraph 41 and the case-law cited).
84 In that regard, the European Court of Human Rights has ruled, with regard to the rights of the defence guaranteed by Article 6(1) ECHR, that that provision requires, in principle, that the prosecution authorities disclose to the defence all material evidence in their possession for or against the accused. That access concerns both the evidence directly relevant to the facts of the case, as well as other evidence that might relate to the admissibility, reliability and completeness of the evidence. That court pointed out, however, that that right of access to the file of a criminal investigation is not absolute and that in some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest. Nevertheless, according to that court, only such measures restricting the rights of the defence which are strictly necessary are permissible under the ECHR (see, to that effect, ECtHR, 12 February 2019, Yakuba v. Ukraine, CE:ECHR:2019:0212JUD000145209, §§ 43 and 44).
85 In addition, the European Court of Human Rights has held that proceedings in which access to evidence was refused on the basis of the type of material at issue and not on an analysis of its content was therefore seriously flawed (see, to that effect, ECtHR, 11 December 2008, Mirilachvili v. Russia, CE:ECHR:2008:1211JUD000629304, §§ 206 to 208).
86 It follows that, in order to guarantee the protection of the rights of persons under investigation in the context of criminal investigation proceedings, enshrined in the first and second paragraphs of Article 47 and in Article 48(2) of the Charter, Article 31(3) of Directive 2019/1 cannot be interpreted as precluding in absolute terms those persons from having access, for the purposes of exercising their rights of defence, to leniency statements and to settlement submissions attached to the file relating to those proceedings, in particular where complaints made against those persons are based on information contained therein. It is apparent from the very wording of Article 31(3) of Directive 2019/1 that the parties subject to the relevant proceedings have a right of access to those statements or submissions precisely for the purposes of exercising their rights of defence. That access cannot therefore be refused solely on the basis of the nature of those statements and submissions, since their non-disclosure to the same persons can be justified only on grounds relating to the protection of a given public interest, in particular the confidentiality of the information contained in those documents and the effectiveness of EU competition law, following a case-by-case examination.
87 As regards, in the second place, access to leniency statements and settlement submissions by the parties to criminal investigation proceedings other than the persons under investigation, it should be recalled that, as pointed out in paragraph 63 above, leniency programmes are useful tools in effectively combatting infringements of competition rules and contribute to ensuring the effective application of Article 101 TFEU. As is also apparent from the case-law cited in that paragraph 63 and from recitals 50 and 72 of Directive 2019/1, the persons involved in infringements of competition law would be deterred from making use of the opportunity offered by such programmes and such effective application could be undermined if documents relating to a leniency procedure could be disclosed, in particular, to persons wishing to bring an action for damages.
88 In that regard, it is apparent from Article 31(3) of Directive 2019/1 that EU competition law allows access to leniency statements and settlement submissions drawn up in the context of an enforcement proceedings initiated by the national competition authority only to the parties subject to those proceedings and for the sole purpose of exercising their rights of defence. The expression ‘parties subject to the relevant proceedings’ in that provision cannot be understood as covering injured parties who may bring an action for damages.
89 Accordingly, that provision would be rendered meaningless if national law did not afford leniency statements and settlement submissions, after their transfer to the criminal authorities in the context of criminal investigation proceedings conducted by those authorities, pursuant to a mutual administrative assistance mechanism, protection equivalent to that afforded to them by EU competition law and, in particular, if any party to those proceedings, including injured parties who could bring an action for damages, had access to those statements and submissions.
90 It must therefore be held that such access is liable to undermine the effectiveness of Article 31(3) of Directive 2019/1 and cannot therefore be granted to the parties to criminal investigation proceedings other than the persons under investigation and, in particular, to the persons harmed by the infringement of competition law concerned who seek compensation for the harm caused by that infringement.
91 Furthermore, in so far as it is apparent from the file before the Court that, under the applicable national law, persons other than the parties under investigation in criminal investigation proceedings have the right of access to leniency statements and to settlement submissions in the file of that investigation, it should be added that, in order to ensure the effectiveness of all provisions of EU law, the primacy principle requires national courts to interpret, to the greatest extent possible, their national law in conformity with EU law. Those courts are therefore required, when they apply national law, to interpret it, to the greatest extent possible, in the light of the text and the purpose of the applicable provisions of EU law, taking into consideration the whole body of national law and applying the interpretative methods recognised by national law, with a view to ensuring that those provisions are fully effective and to achieving an outcome consistent with the objective which they pursue (see, to that effect, judgment of 30 January 2025, Caronte & Tourist, C‑511/23, EU:C:2025:42, paragraphs 78 and 79 and the case-law cited).
92 In the light of all the foregoing considerations, the answer to the third question is that Article 31(3) of Directive 2019/1, read in the light of the first and second paragraphs of Article 47 and Article 48(2) of the Charter, must be interpreted as not precluding national legislation under which, in the context of criminal proceedings which do not concern an infringement of competition law, persons under investigation who are not the authors of those statements or submissions have the right of access to leniency statements and settlement submissions, drawn up for the purposes of proceedings before a national competition authority and transmitted to national criminal authorities, but as precluding national legislation under which such right of access is granted to other parties to those criminal proceedings, in particular, persons harmed by the infringement of competition law concerned who seek compensation for the harm caused by that infringement.
93 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. 1. Article 101 TFEU 2. Article 31(3) of Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market 3. Article 31(3) of Directive 2019/1, read in the light of the first and second paragraphs of Article 47 and Article 48(2) of the Charter of Fundamental Rights of the European Union,