Discovery, Confidentiality and Disclosure of Evidence Under the Private Enforcement of EU Antitrust Rules

Abstract

The approval of Regulation 1/2003 and the accompanying "modernisation package" of EU antitrust rules has taken antitrust into the civil process. Some rules of this new private enforcement framework are clearly different from those of publicly enforced systems. Most noteworthy are the differences between the public bodies' and private parties to bring evidence into the process.

This paper describes the implications of rules governing discovery, confidentiality and disclosure of evidence on the private enforcement system. Also highlights the importance of the exchange of information between competition authorities and civil courts in fostering private enforcement. It then turns towards the main concerns that this new approach to antitrust enforcement generates in the EU from a confidentiality and business secrets protection standpoint. It also points to the need to avoid excessive litigation, and insist on the objective of harmonising the existing domestic regulations of private proceedings across all Member States.

Keywords: legal procedure, confidentiality, evidence, private enforcement, competition law

JEL Classification: K21, K41