Access to Documents in Antitrust Litigation – EU and Croatian Perspective
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The paper analyses access to documents in cartel-based damages cases from the EU and Croatian perspective. It considers all relevant EU and Croatian legislation and case-law primarily focusing on the expected impact of the newly enacted Damages Directive. It is argued that the new rules on access to documents provided by the Directive will not necessarily have a significant impact on damages proceedings following cartel decisions issued by the Commission. This is due to the introduction of an absolute ban on the disclosure of leniency statements and settlement submissions via a ‘maximum harmonization’ rule. This conclusion is drawn from statistic figures showing that EU cartel enforcement rests solely on the leniency and settlement procedures. With that in mind, it is concluded that the Directive’s general, permissive rules on access to documents (other than leniency and settlement procedures) will not be applicable in most damages cases following the cartel infringement decision issued by the Commission. However, it is also observed that the Damages Directive’s new rules on access to documents may have the opposite impact on private enforcement in cases following infringement decisions issued by National Competition Authorities (NCAs) which do not rely as much on leniency in their fight against cartels as the Commission. The Directive’s general rule on access to documents will apply in jurisdictions such as Croatia, where all of its cartel decisions so far have been reached within the regular procedure. It is argued that the general access rule, coupled with other rules strengthening the position of claimants in antitrust damages proceedings, might actually be beneficial for both public and private enforcement in such jurisdictions.
- Barennes M., ‘The Role of the Settlement Procedure and of the Leniency Program in the European Commission’s Fight against Cartels: Some Considerations in Light of the Commission’s Practice during the Past Five Years (2010-2014)’, (not published yet) presented and prepared for the 4. Petar Šarčević International Scientific Conference: EU Competition And State Aid Rules: Interaction Between Public And Private Enforcement, Rovinj, 9-10 April 2015.
- Bentley P., Henry D., ‘Antitrust Damages Actions: Obtaining Probative Evidence In The Hands Of Another Party’ (2014) 37(3) World Competition.
- Blume Huttenlauch A., ‘Transparency (Un)limited?’ (2014) European Law Reporter. Brömmelmeyer C., ‘Directive damages: Does the Commission overstep the marks again?’ (2015) 1 Sorbonne Procedural Law Review Online, http://irjs.univ-paris1.fr/ labo/departement-de-recherche-justice-et-proces/revuelectroniqueliensprocessu/ directiveprivateenforcement/.
- Bukovac Puvača M., Butorac V., ‘Izvanugovorna odgovornost za štetu prouzročenu povredom pravila tržišnog natjecanja’ (2008) 6 Zbornik radova Pravnog fakulteta Sveučilišta u Mostaru.
- Chirita A., ‘The disclosure of evidence under the Directive 2014/104/EU’, (not published yet) presented and prepared for the 4. Petar Šarčević International Scientific Conference: EU Competition And State Aid Rules: Interaction Between Public And Private Enforcement, Rovinj, 9-10 April 2015.
- Gavil I.A. ‘The Challenges of economic proof in a decentralized and privatized European competition policy system: lessons from the American experience’ (2008) 4(1) Journal of Competition Law and Economics.
- Geiger A., ‘The end of the EU cartel leniency programme’ (2011) 32(10) European Competition Law Review.
- Geradin D., Grelier L.-A., ‘Protection of leniency submissions: an insufficient ‘Pfleiderer fix’ Cartel Damages Claims in the European Union: Have we only Seen the Tip of the Iceberg?’, George Mason University School of Law; Tilburg University – Tilburg Law and Economics Centre (TILEC) 2013, http://papers.ssrn.com/sol3/papers.cfm?abstract_ id=2362386&rec=1&srcabs=2292575&alg=1&pos=1
- Goddin G., ‘The Pfleiderer Judgment on Transparency: The National Sequel of the Access to Document Saga’ (2012) 3(1) Journal of European Competition Law & Practice.
- Gutierrez-Rodriguez J.D., ‘Expert Economic Testimony In Antitrust Cases: A Comparative Law And Economic Study’ (2009) 14 International Law, Revista Colombiana De Derecho Internacional.
- Howard A., ‘Disclosure Of Infringement Decisions In Competition Damages Proceedings: How The UK Courts Are Leading The Way Ahead Of The Damages Directive’ (2015) 6(4) Journal of European Competition Law & Practice.
- Howard A., ‘The Draft Directive On Competition Law Damages- What Does It Mean For Infringers And Victims?’ (2014) 35(2) European Competition Law Review.
- Hummer C., Cywinski M., ‘ECJ’s Judgements In “Enbw” And “Donau Chemie” And The Unresolved Problems Of Access To File’ (2014) 7(2) Global Competition Litigation Review.
- Kellerbauer M., ‘The Recent Case Law On The Disclosure Of Information Regarding EU Competition Law Infringements To Private Damages Claimants’ (2014) 35(2) European Competition Law Review.
- Kumar Singh A., ‘Pfleiderer: Assessing its Impact on the Effectiveness of the European Leniency Programme’ (2014) European Competition Law Review.
- Jones C.A., ‘Private Antitrust Enforcement in Europe: A policy Analysis and Reality Check’ (2004) 27(1) World competition.
- Lacchi C., Östlund A., ‘General Presumptions of Non-disclosure of Leniency Documents: a New Approach to the Interaction between Public and Private Enforcement of Antitrust Law?’ (2014) European Law Reporter.
- Lebrun B., Bersou L., ‘Commission v EnBWEnergie: Non-Disclosure of Leniency Documents’ (2014) 5(7) Journal of European Competition Law & Practice.
- Mackenzie G., ‘The public now enjoys partial access to the EC’s file in cartel cases’ (2005) 4(9) Competition Law Insight.
- Mario M., ‘Private litigation as a key complement to public enforcement of competition rules and the first conclusions on the implementation of the new Merger Regulation’, SPEECH/04/403.
- Müller U., ‘Access to the file of a national competition authority’ (2011) 2 European Law Reporter.
- Pecotić Kaufman J., ‘How to facilitate damages claims? Private enforcement of competition rules in Croatia – Domestic and EU Law perspective’ (2012) 5(7) Yearbook of Antitrust and Regulatory Studies.
- Roth P., Rose V. (eds.), Bellamy & Child, European Community Law of Competition, 6th ed., Oxford University Press 2008.
- Sánchez Rydelski M., ‘Antitrust Enforcement: Tensions between Leniency Programmes and Civil Damage Actions – How Immune is a Leniency Applicant? (Pfleiderer AG/ Bundeskartellamt, ECJ (Grand Chamber), Judgment of 14 June 2011, C-360/09’ (2011) 6 European Law Reporter.
- Sanders M., Jordan E., et al., ‘Disclosure of leniency materials in follow-on damages actions: striking ‘the right balance’ between the interests of leniency applicants and private claimants?’ (2013) European Competition Law Review.
- Slot P.J., ‘Does the Pfleiderer judgment make the fight against international cartels more difficult?’ (2013) European Competition Law Review.
- Stefano G., ‘Access of damage claimants to evidence arising out of EU cartel investigations; a fast evolving scenario’ (2012) 5(3) Global Competition Litigation Review.
- Völcker S.B., ‘Case C-360/09, Pfleiderer AG v. Bundeskartellamt, Judgment of the Court of Justice (Grand Chamber) of 14 June 2011, nyr.’ (2012) Common Market Law Review.
- Vrcek B., ‘Development sin private enforcement of competition rules after the Croatian accession to the EU’ (2014) 7(3) Global Competition Litigation Review.
- Walle S.V., Private Antitrust Litigation in the European Union and Japan: A Comparative Perspective, Maklu, Antwerpen-Apeldoorn 2013.
- Wils P.J.W., ‘Should private antitrust enforcement be encouraged in Europe?’ (2003) 26(3) World Competition.
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