Access to Evidence and Leniency Materials

79 Pages Posted: 18 Feb 2016 Last revised: 2 Mar 2016

See all articles by Florian Wagner-von Papp

Florian Wagner-von Papp

Helmut Schmidt University / University of the Armed Forces Hamburg

Date Written: February 18, 2016

Abstract

This paper discusses the current state of disclosure/discovery in the United States, England & Wales, Germany, and the European Union, and the changes brought about by Directive 2014/104/EU on Actions for Damages for Infringements of Competition Law ("Damages Directive").

The Damages Directive is meant to create a "level playing field" across the Member States of the European Union. The paper describes previous legislative interventions in the United States (with various amendments to FRCP 26) and England (following the Woolf and Jackson reviews) that tried to limit "excessive discovery" with limited success, and legislative intervention in Germany as well as judicial intervention on the EU level that tried to expand disclosure in continental Europe with equally limited success. The paper analyses the Damages Directive's provisions on disclosure and access to evidence in detail, and concludes that they are, in themselves, unlikely to change the legislatures' or courts' attitude in continental Europe, because they only enable courts to order disclosure, but do not require them to do so. If any change towards more disclosure is to happen in Europe, either the Member States will have to gold plate when implementing the Directive, or the Court of Justice of the European Union will have to give clear guidance under the principle of effectiveness. The paper also discusses the Directive's provisions limiting disclosure that could interfere with public enforcement, in particular leniency statements and settlement provisions.

Keywords: Discovery, disclosure, access to evidence, Damages Directive, economic analysis, comparative analysis, civil procedure

JEL Classification: K12, K13, K21, K41, K42

Suggested Citation

Wagner-von Papp, Florian, Access to Evidence and Leniency Materials (February 18, 2016). Available at SSRN: https://ssrn.com/abstract=2733973 or http://dx.doi.org/10.2139/ssrn.2733973

Florian Wagner-von Papp (Contact Author)

Helmut Schmidt University / University of the Armed Forces Hamburg ( email )

Holstenhofweg 85
Hamburg, 22008
Germany

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