Access to Documents for Cartel Victims and Cartel Members – is the System Coherent?
in Maria Bergström, Marios Iacovides, Magnus Strand (editors) ”Harmonizing EU Competition Litigation: The New Directive and Beyond”, forthcoming with Hart Publishing/Bloomsbury in 2015.
22 Pages Posted: 27 Jun 2015
Date Written: June 21, 2015
In this paper we analyse the right to access documents for cartel victims and cartel members. We start with an analysis of the case law from the European Court of Justice and the General Court. The effects of the new Private Enforcement Directive will thereafter be scrutinized. These two sub-chapters are divided so that we analyse the requestors: (i) individuals or (ii) national courts, and the recipients of these requests: (iii) potential or real defendants, (iv) national competition authorities, or (v) the European Commission, separately. Different legal systems are triggered depending on who makes a request and who is the receiver of such a request, and the potential success of obtaining the documents varies considerably. Thereafter, we discuss the rights to the defence and access to documents while being subject to a cartel investigation by the Commission. Our finding is that different legal systems are triggered depending on who makes a request and who is the receiver of such a request, and the potential success of obtaining the documents varies considerably. In fact, the system is not coherent.
We conclude with some suggestions for the Member States on how to transpose the Directive so as to maximize private actions through granting access to documents without thereby dismantling the leniency programmes.
Keywords: Antitrust, Private Enforcement, Right to Defence, Access to Documents, Commission, National Competition Authorities
Suggested Citation: Suggested Citation