In its Judgment of 6 June 2013 in case C-536/11 Donau Chemie and Others, the Court of Justice of the European Union (CJEU) has disagreed with the Opinion of Advocate General Jääskinen on the need for an (almost) absolute protection of leniency applications from disclosure to third parties interested in claiming damages (which was criticised here).
In my opinion, this development should be most welcome and puts pressure on the European Commission to change its own position regarding the disclosure of leniency applications for the purposes of damages actions before the national courts of the Member States.
It should be recalled that AG Jääskinen tried to carve out a truly significant exception for leniency applications not to be subjected to general rules on disclosure of evidence to potential damages claimants. In his opinion, he indicated that, on the one hand, and on the basis of the general requirements of the principle of effectiveness (effet utile) of EU law
51. […] subjecting access to public law competition judicial files to the consent of the infringer of the competition rules amounts to a significant deterrent of the exercise to a right to claim civil damages for breach of EU competition law. The Court has ruled that if an individual has been deterred from bringing legal proceedings in good time by the wrong-doer, the latter will not be entitled to rely on national procedural rules concerning time limits for bringing proceedings. I can see no reason for confining the application of this principle to limitation periods, and would advocate its extension to onerous rules of evidence that have an analogous deterrent effect. I would further query the compliance of remedies that deter enforcement of EU law rights with Article 19(1) TEU (footnotes omitted, emphasis added).
On the other hand, however, the AG considered that
55. Article 47 [of the Charter of Fundamental Rights] is also relevant to the case to hand because it guarantees the fairness of hearings, which serves to protect the interests of the undertakings that have participated in the cartel. In my opinion, access by third parties to voluntary self-incriminating statements made by a leniency applicant should not in principle be granted. The privilege against self-incrimination is long established in EU law, and it is directly opposable to national competition authorities that are implementing EU rules.
56. It is true that leniency programmes do not guarantee protection against claims for damages and that the privilege against self-incrimination does not apply in private law contexts. Despite this, both public policy reasons and fairness towards the party having given incriminating declarations within the context of a leniency programme weigh heavily against giving access to the court files of public law competition proceedings where the party benefiting from them has acted as a witness for the prosecuting competition authority (footnotes omitted, emphasis added).
As I said, in my view, both positions are logically irreconcilable in that leniency applicants would have (by definition) prevented by their own unilateral will, access by third parties to the parts of the file that could be used to claim damages against them (something the AG rightly criticises at para. 51 of his Opinion).
In light of that debate, I think that the Donau Chemie Judgment should be welcome for the more balanced approach that the CJEU adopts:
39 […] in so far as the national legal measure or rule at issue in the main proceedings allows the parties to the main proceedings having infringed Article 101 TFEU the possibility of preventing persons allegedly adversely affected by the infringement of that provision from having access to the documents in question, without taking account of the fact that that access may be the only opportunity those persons have to obtain the evidence needed on which to base their claim for compensation, that rule is liable to make the exercise of the right to compensation which those persons derive from European Union law excessively difficult.
40 That interpretation is not called into question by the Austrian Government’s argument to the effect that such a rule is especially necessary in respect of documents lodged by parties in a file relating to proceedings under a leniency programme, in order to ensure the effectiveness of such a programme and therefore also that of the application of Article 101 TFEU.
41 Admittedly [...] Member States must not apply the rules on file access in such a manner as to undermine public interests such as the effectiveness of anti-infringement policies in the area of competition law.
42 The Court has recognised that leniency programmes are useful tools if efforts to uncover and bring an end to infringements of competition rules are to be effective and thus serve the objective of effective application of Articles 101 TFEU and 102 TFEU. The effectiveness of those programmes could be compromised if documents relating to leniency proceedings were disclosed to persons wishing to bring an action for damages. The view can reasonably be taken that a person involved in an infringement of competition law, faced with the possibility of such disclosure, would be deterred from taking the opportunity offered by such leniency programmes (C-360/09 Pfleiderer  ECR I-5161, paragraphs 25 to 27).
43 It is clear, however, that although those considerations may justify a refusal to grant access to certain documents contained in the file of national competition proceedings, they do not necessarily mean that that access may be systematically refused, since any request for access to the documents in question must be assessed on a case-by-case basis, taking into account all the relevant factors in the case (see, to that effect, Pfleiderer, paragraph 31).
44 In the course of that assessment, it is for the national courts to appraise, firstly, the interest of the requesting party in obtaining access to those documents in order to prepare its action for damages, in particular in the light of other possibilities it may have.
45 Secondly, the national courts must take into consideration the actual harmful consequences which may result from such access having regard to public interests or the legitimate interests of other parties.
46 In particular, as regards the public interest of having effective leniency programmes referred to by the Austrian Government in the present case, it should be observed that, given the importance of actions for damages brought before national courts in ensuring the maintenance of effective competition in the European Union (see C‑453/99 Courage and Crehan  ECR I‑6297, paragraph 27), the argument that there is a risk that access to evidence contained in a file in competition proceedings which is necessary as a basis for those actions may undermine the effectiveness of a leniency programme in which those documents were disclosed to the competent competition authority cannot justify a refusal to grant access to that evidence.
47 By contrast, the fact that such a refusal is liable to prevent those actions from being brought, by giving the undertakings concerned, who may have already benefited from immunity, at the very least partial, from pecuniary penalties, an opportunity also to circumvent their obligation to compensate for the harm resulting from the infringement of Article 101 TFEU, to the detriment of the injured parties, requires that refusal to be based on overriding reasons relating to the protection of the interest relied on and applicable to each document to which access is refused.
48 The mere risk that a given document may actually undermine the public interest relating to the effectiveness of the national leniency programme is liable to justify the non-disclosure of that document (C-536/11 at paras 39-48, emphasis added).
By rejecting the general criterion proposed by AG Jääskinen that leniency documents should in principle be protected from disclosure, the CJEU has preserved the potentiality for damages actions to actually develop in the EU.
However, the conditions under which the considerations regarding the circumstances in which the mere risk of disclosure of a specific document can be sufficient to prevent it on the basis that it could 'actually undermine the public interest relating to the effectiveness of the national leniency programme' (para 48) could have been explored in some more detail. A comparison of the English and the French, Spanish and Italian versions supports, in my view, the need for a very restrictive interpretation of this 'escape clause' created by the CJEU--which should only be applied under relatively extreme circumstances where the potential damage to the leniency system could be so great as to render it practically useless.
In view of the Donau Chemie Judgment, it may now be time for the European Commission to revise its own approach to the disclosure of leniency applications and to modify the policy adopted in the Notice on Cooperation with the National Courts, where it is clearly established that
the Commission may refuse to transmit information to national courts for overriding reasons relating to the need to safeguard the interests of the Community or to avoid any interference with its functioning and independence, in particular by jeopardising the accomplishment of the tasks entrusted to it(45). Therefore, the Commission will not transmit to national courts information voluntarily submitted by a leniency applicant without the consent of that applicant (para 26, emphasis added).
Such an absolute protection seems clearly at odds with the approach adopted by the CJEU and, consequently, a revision seems in order as a matter of institutional loyalty. Let's see how quickly it can take place...