Hoping for leniency by confessing cartel behaviour? Your plan may backfire

It is called the leniency program: a member of a cartel voluntarily provides documents and information on the cartel in the hope that no penalty will be imposed on it. In the EU, including the Czech Republic, this program is used frequently as an tool to enforce competition law.

Pfleiderer Case

For many years EU authorities provided no firm guidance on how competition authorities (in the Czech Republic – the Office for the Protection of Economic Competition) should handle documents submitted to them by participants in proceedings. Could they grant third parties access to the materials or not? The EU Commission’s standard procedure was generally not to enable this.

This more or less certain position was shaken last year by a ruling handed down by the European Court of Justice (“ECJ”) in the Pfleiderer case. According to the court’s decision, cartel members who decide to cooperate with a competition authority in an attempt to avoid penalization cannot be sure that such documents will not then be made available to third parties, typically to the cartel members’ customers or business partners who were harmed by the cartel and who are now eager to recover damages through a civil action.

The ECJ decided this matter in a preliminary ruling in response to an inquiry from a German court. Principally, the ECJ considered two competing interests: (a) the need to ensure the effectiveness of leniency programs intended to expose and punish cartels and (b) individuals’ rights to recover loss caused by such cartels.

Confidentiality is not guaranteed

The Advocate General sided with keeping the documents confidential. He argued that although failure to allow access to leniency applications may limit an aggrieved party’s options to seek damages, such intervention is justifiable on the grounds of a legitimate objective, namely the effective punishment of infringements of competition law.

The ECJ, however, disagreed. In its decision, it stated that EU rules prohibiting cartels should be interpreted as follows: parties seeking damages as a result of an infringement of competition law cannot be denied access to the leniency materials submitted by a party in breach of such law. According to the ECJ, it is for the national courts in individual EU member states to determine the conditions for allowing such access, always taking into account the interests protected by EU laws.

As you may realize, the outcome of such approach is the creation of significant uncertainty on the part of potential applicants for leniency. No one is safe in assuming that documents and information provided to the national antitrust authority will not ultimately be used against them. This would weaken the attractiveness of the leniency program as an effective tool for competition authorities to use against cartels.

It seems, however, that Czech lawmakers plan to clarify this situation. A draft amendment to the Act on the Protection of Economic Competition has been submitted to the Chamber of Deputies, which is expected, in addition to anchoring in law the leniency program and other issues, to contain an explicit provision to the effect that only that part of the file containing the leniency application may be made available to a party to proceedings or its representative. It thus seems that, for now, those who wish to confess their participation in a cartel can sleep a little more peacefully.