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St.Martin Conference 2009 November 12, 2009 Leniency Programme – Access to File, Discovery Rules

St.Martin Conference 2009 November 12, 2009 Leniency Programme – Access to File, Discovery Rules. Vladimíra Glatzová, Glatzová & Co. Importance of Confidentiality for Leniency. Confidentiality - condition sine qua non for L eniency. Two R isks of L eakage of I nformation:

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St.Martin Conference 2009 November 12, 2009 Leniency Programme – Access to File, Discovery Rules

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  1. St.Martin Conference 2009November 12, 2009Leniency Programme – Access to File, Discovery Rules • Vladimíra Glatzová, Glatzová & Co.

  2. Importance of Confidentiality for Leniency • Confidentiality - condition sine qua non for Leniency. • Two Risks of Leakage of Information: • leakage of information on leniency proceedings to other cartel members • leakage of information about cartel to consumers

  3. Leniency Proceedings Leniency Application Opening of Administrative Proceedings (opening of the file) Dawn-rides (místní šetření) Statement of Objections (sdělení výhrad)

  4. Confidentiality of Leniency Documents • Access to File • When? • Opening of proceedings • By whom? • Participants to proceedings • Third parties with legal interest • Content of File - Corporate Statement excluded until SO, - Business secret entirely excluded from file

  5. Conflict with Discovery Rules Discovery Rules incriminating Leniency documents might be requested in private civil actions for damage namely USA (+England and Wales, Germany)  hamper effectiveness of Leniency Programme potential economic harms in the form of damages x economic benefit of Leniency Programme

  6. Conflict with Discovery Rules 2 Consequence  Oral Leniency attempt to frustrate discovery requests Possible solution of conflict – application of Principle of International Comity possible exemption of Leniency documents from discovery based on Rule 26 current downsides: inconsistency of interpretation of the principle by courts

  7. Conclusion 1 Relevant changes in Czech legislation to be adopted to secure confidentiality: access to file only after SO no access for third parties

  8. Conclusion 2 Consistency in application and interpretation of the Principle of International Comity to be ensured

  9. Thank you for listening!Glatzova & Co., v.o.sHusova 5, Praha 1vladimira.glatzova@glatzova.com

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