Access to competition authorities' files in private antitrust litigation

摘要

The growth of private antitrust litigation in the courts of the Member States creates tensions\udbetween claimants and competition authorities. Claimants seek access to confidential records held\udby the authorities while the competition authorities try to maintain the confidentiality of those files.\udThis paper analyses the two main access routes to confidential information in the files of\udcompetition authorities in the EU. It first looks at access under Regulation 1049/2001 (Transparency\udRegulation).  Then, the paper assesses the framework for disclosure in the national courts, analysing\udthe Court of Justice’s Pfleiderer and Donau Chemie decisions, its application in England and\udGermany, and the changes that are required with the adoption of the Damages Directive. This\udauthor finds that both access routes tend to favour the protection of authority files and that access‐\udseeking parties face high legal thresholds for the disclosure of files and leniency documents. I will\udargue that the raised standard for access demonstrates a policy change regarding private antitrust\udenforcement. EU policy makers and the courts have begun to moderate the principle of effective\udredress as expressed in Courage and Manfredi. In order to minimise repercussions for public\udenforcement they reduce the incentives for claimants to bring follow‐on damages actions.