Due Process in the EU: Transparency vs Protection of Leniency and Professional Privilege

1. 100% Due Process in the EU:Transparency vs Protection of Leniency and Professional Privilege Stephan Polster Dubrovnik, 16 June 2011

2. Confidentiality of EU Commission and NCA cartel files • Leniency programs most effective weapons in public cartel enforcement at EU and national level • But: Private plaintiffs are seeking access to records (including leniency statements) in cartel cases to obtain evidence for their damage claims • Protection of leniency applicants vs enhancement of private enforcement of competition law

3. Access to cartel files of EU Commission: Legal Framework • Reg 1/2003 (arts 27, 28); Reg 773/2004 (art 15); Commission Notice 139/2004 • Access to the file for defendants of Commission case after statement of objections • Exceptions: Internal documents, correspondence between the Commission and NCA/courts of MS, business secrets and other confidential information • No access to the file for complainants • Permitted use only for the purpose of judicial or administrative proceedings under arts 101 and 102 TFEU (including private damage actions)

4. Access to Commission Files for Private Plaintiffs? • EU Commission: No disclosure of corporate statements ("leniency applications") (White Paper on private enforcement; 2006 Leniency Notice, para 33) • Private plaintiffs seeking access directly via Commission or via NCAs/national courts • Access rights eventually to be decided by EU Courts

5. Access to Commission Files for Private Plaintiffs? Access via EU Commission? • Based on Reg 1049/2001: general right to access documents of EU institutions, save for certain public and private interests • Judgments VKI and éditions Odile Jacob: detailed individual justifications for exceptions • Judgment TGI (2010): restricting scope of application of Reg 1049/2001 to competition cases, absent "higher public interest"? • Several other cases pending before EU Courts

6. Access to Commission Files for Private Plaintiffs? Access via NCA/national courts? • Based on art 4a (3) TFEU and arts 11 – 12 and 15 Reg 1/2003 • Judgment Postbank (1996): refusal to disclose to MS only when disclosure would "be capable of interfering with the functioning and independence of the Community" • But: Commission strongly advocates protection of corporate statements (Commission 2004 Cooperation Notice)

7. Confidentiality of NCA cartel files • It is a "divided world" • The Austrian example: • No third party access without explicit consent of all parties to cartel proceedings • But: loopholes via criminal proceedings • AG Mazak in Pfleiderer(pending ECJ preliminary ruling): NCA should not provide access to voluntary self-incriminating statements to potential private plaintiffs (but to all other pre-existing documents which could assist to establish a breach of art 101 TFEU, damage and a causal link)

8. "Best Practices" for multi-jurisdictional leniency filings • Risk assessment of leniency application: "Business Judgment Rule" • Leniency applications in all potentially affected jurisdictions • Oral corporate statements • No admission of cartel damages

9. Legal Professional Privilege: EU ECJ in Akzo (2010): • No LLP for in-house counsel (confirmed) • But: LLP extends to internal documents drawn up exclusively for the purpose of seeking legal advice from outside lawyer • No privilege for communication with non-EU external counsel • No privilege for communication between external lawyers

10. Legal Professional Privilege: National Laws • Again ... it is a "divided world" • eg Austria: NCA refuses LLP in national proceedings • eg UK: Privilege also of communication with in-house lawyer