• Access to the European Commission's File in Civil Litigation Claims Against Parties to a Cartel
  • April 18, 2005
  • Law Firm: Gibson, Dunn & Crutcher LLP - Los Angeles Office
  • On 13 April 2005, the European Court of First Instance ('CFI') annulled a European Commission decision rejecting a request for access to the Commission's administrative file in the Lombard Club cartel case. The background to this decision was the Commission's decision of June 2002 imposing fines of over 124 million euro in total on eight Austrian banks for their participation in a wide-ranging price cartel.1 An application to annul the decision is still pending.

    The CFI's ruling raises serious issues relating to the discovery of Commission documents, in particular in cartel investigations and leniency applications.

    The request for access to the file was brought by Verein für Konsumenteninformation ('VKI'), a consumer organisation which under Austrian domestic law has the right to bring proceedings before the Austrian civil courts in order to assert certain financial claims of consumers. The VKI is currently conducting several sets of civil litigation proceedings before the Austrian courts against BAWAG, the main Austrian bank fined by the Commission in 2002.

    This power is not dissimilar to that introduced by the Hart-Scott-Rodino Antitrust Improvements Act of 1976 which provided state attorneys general with express statutory authority to recover treble damages on behalf of natural persons in a capacity of parens patriae.

    The VKI challenged the Commission's refusal to grant access to the documents on its cartel files on the grounds that it breached the general right of access to documents. In particular, it was in breach of the Regulation regarding public access to European Parliament, Council and Commission documents (the 'Regulation')2 to refuse access to the whole of an administrative file without having first actually examined each of the documents contained in the file.

    The CFI ruled that where a request for access to documents is made under the Regulation the Commission is obliged to examine and reply to that request on a document-by-document basis and, in particular, to determine whether any of the exceptions referred to in that regulation is applicable to the documents in question.

    The exceptions to the general right to access to a document are the following:

    • protection of the public interest;
    • privacy and integrity of individuals;
    • protection of commercial interests, court proceedings and legal advice, or inspections and investigations.

    It is generally acknowledged that discovery at the European level is more limited than discovery in the US. In competition cases, the Commission refuses access to its files by relying on the grounds that discovery would undermine competition inspections and investigations (as stated in the Commission's Leniency Notice of 2002) and therefore that one of the exceptions to the general right of access is applicable.

    The Commission's position is now likely to be subject to re-examination in light of the judgment in the Lombard Case.

    The difficulties involved in these issues have been highlighted in numerous cartel litigations in the U.S., where civil plaintiffs routinely seek copies of documents and information submitted to or obtained (via file access) from the Commission. US court decisions have diverged in their approach on the propriety of such discovery efforts. As a result of the risk of discovery in the US, the current Commission practice in leniency applications is to entertain oral presentations by counsel for the leniency applicants and to impose limitations on the rights of interested parties to copy certain materials in the file.

    The CFI's judgment in the Lombard Case now means that the Commission must:

    • carry out a concrete, individual assessment of the content of the documents to which access has been requested, and
    • determine whether any of the exceptions referred to in the Regulation is applicable to the documents in question.

    As a result of the CFI's judgment, third parties will doubtless press more vigorously to have their requests for discovery of documents on the Commission's file assessed by the Commission.

    At the same time, companies which are subject to Commission investigations need to ensure that they are careful to assess potential future disclosure risks before deciding whether and how to turn over documents, data and other information.

    In appropriate cases, and where possible, formal reassurance should be sought from the Commission that documents provided to it do fall within one of the exceptions from disclosure. Since many documents are acquired other than on a voluntary basis, for example during dawn raids, this will not always be possible.

    1 Commission Decision 2004/138/EC of 11 June 2002 relating to a proceeding under Article 81 of the EC Treaty (in Case COMP/36.571/D-1: Austrian banks -- 'Lombard Club'), OJ 2004 L 56/1, (the "Lombard Case").

    2 Article 255 of the treaty establishing the European Community, implemented through Regulation 1049/2001 of 30 May 2001, OJ 2001 L 145/43, grants a right of access to European Parliament, Council and Commission documents to any Union citizen and to any natural or legal person residing, or having its registered office, in a Member State.