Removing the Tension between Public and Private Enforcement: Disclosure and Privileges for Successful Leniency Applicants
JECLAP 2013, November 17, 2013, doi:10.1093/jeclap/lpt068
5 Pages Posted: 20 Sep 2013 Last revised: 5 Dec 2013
Date Written: September 18, 2013
Disclosure of documents enhances the effectiveness of private enforcement but must not deter from making leniency applications. As established by the ECJ in DonauChemie absolute protection for certain documents is incompatible with the primary law principle of effectiveness. Thus the per se protection of corporate leniency statements and settlement statements must at least be reduced to a protection in principle that leaves room for a different decision in exceptional cases. The best solution, however, would be to privilege cartelists who receive immunity from fines by giving them the right to full contribution from their co-infringers. This would mean: Leniency applicants would not have to fear private enforcement, because they can recover any damages paid to victims from their co-infringers. Thus all documents could, subject to a court order in each individual case, be disclosed without deterring cartelists from filing leniency applications. The tension between public and private enforcement would be removed and both ways of enforcement would be strengthened: Public enforcement is strengthened because leniency applicants are not deterred from leniency applications but are rather given an additional incentive, namely immunity from civil liability. Private enforcement is strengthened because victims receive information necessary to claim damages and because the privileges granted to leniency applicants are not granted at the victims’ expense but at the expense of the co-infringers.
Keywords: directive, proposal, private enforcement, cartel damage, damage claim, public enforcement, leniency, leniency documents, privilege, DonauChemie, Pfleiderer, COM(2013) 404
JEL Classification: K21, K10, K42, K00
Suggested Citation: Suggested Citation