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The EU Court of Justice Upholds the Commission’s Refusal to Give Damages Claimants Access to Its Cartel Case Files (EnBW)

Juan Rodriguez and Michael Engel, e-Competitions Bulletin, Art. N° 64916, February 2014

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The EU Transparency Regulation has been afflicted by the law of unintended consequences. It aims to provide a legal framework for the granting of public access to the EU institutions’ documents so that EU decisions “are taken as openly as possible and as closely as possible to the citizen”. However, cartel damages claimants, ever eager to find evidence in support of their claims, have used the Transparency Regulation to try to obtain documents in the EU Commission’s cartel case files, particularly leniency statements.

Unsurprisingly, the Commission, fearful that public disclosure of leniency statements and other documents in its case files would deter would-be leniency applicants from coming forward, has been circumspect about the use of the Transparency Regulation for this purpose. The latest word in the debate on confidentiality versus disclosure has come from the European Court of Justice (“ECJ”) in its judgment on 27 February 2014 in European Commission v EnBW Energie Baden-Württemberg AG (“EnBW”) [3]. The judgment will be welcomed by the Commission, as well as defendants in cartel damages claims because it relieves the tension between the Commission’s disclosure obligations under the Transparency Regulation and its confidentiality obligations under Regulations 1/2003 and 773/2004. In so doing, the ECJ has made it harder for damages claimants to use the Transparency Regulation to obtain materials held in to the Commission cartel case files.

This article summarises the legal issues dealt with in the EnBW judgment and comments on its practical implications.

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