Access to Documents in Antitrust Litigation EU and Croatian Perspective

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

The Impact of EU Law on a National Competition Authority's Leniency Programme the Case of Poland

This paper is devoted to the impact of EU law on national leniency programmes, especially the Polish one. It analyses the jurisprudence of the Court of Justice in Pfleiderer, Donau Chemie and Schenker and identifies three specific areas of potential EU influence on national leniency programmes. The impact of EU law on the rules of access to leniency documents is analysed in detail on the basis of both EU and Polish law and taking into account the Draft Directive on Antitrust Damages Actions. The paper covers also the extent to which the principle of effectiveness of EU law limits the procedural autonomy of Member States in regard to their leniency programmes. This analysis covers both “negative conditions”, that is, elements of national leniency programmes which are incompatible with EU law, and “positive conditions”, in order words, those elements of domestic leniency programmes which are seen as necessary for securing their effectiveness.L'article concerne l'influence du droit de l‘Union européenne sur les programmes de clémence nationaux, en particulier le programme polonais. La jurisprudence de la Cour de justice de l’Union européenne est analysée, surtout les arrêts en Pfleiderer, Donau Chemie et Schenker. Les trois avenues de l'influence du droit européen sur le programme de clémence sont identifiés – les règles d'accès aux confessions des entreprises bénéficiaires de la clémence, qui sont analysées en détaille, les limitations des programmes nationaux de clémence à cause du principe d'effectivité et les obligations des autorités nationales de concurrence d’assurer l'effectivité des programmes de clémenc