Case C-360/09

Pfleiderer AG

v

Bundeskartellamt

(Reference for a preliminary ruling from the Amtsgericht Bonn)

(Competition – Administrative procedure – Documents and information provided under a national leniency programme – Possible negative effects of third-party access to such documents on the effectiveness and proper functioning of cooperation between the authorities forming the European Competition Network)

Summary of the Judgment

1.        Competition – European Union rules – Commission notices on cooperation and on immunity from fines and reduction of fines – Model leniency programme drawn up within the European Competition Network

(Arts 101 TFEU and 102 TFEU; Commission Notices 2004/C 101/03 and 2006/C 298/11)

2.        Competition – Agreements, decisions and concerted practices – Adverse effect on competition

(Art. 101 TFEU; Council Regulation No 1/2003)

1.        The Commission Notice on cooperation within the Network of Competition Authorities and the Commission Notice on immunity from fines and reduction of fines in cartel cases are not binding on Member States. Further, the latter notice relates only to leniency programmes implemented by the Commission itself. The model leniency programme drawn up within the European Competition network and designed to achieve the harmonisation of some elements of national leniency programmes likewise has no binding effect on the courts and tribunals of the Member States.

(see paras 21-22)

2.        The provisions of European Union law on cartels, and in particular Regulation No 1/2003, must be interpreted as not precluding a person who has been adversely affected by an infringement of European Union competition law and is seeking to obtain damages from being granted access to documents relating to a leniency procedure involving the perpetrator of that infringement. It is, however, for the courts and tribunals of the Member States, on the basis of their national law, to determine the conditions under which such access must be permitted or refused by weighing the interests protected by European Union law.

Even if the guidelines set out by the Commission may have some effect on the practice of the national competition authorities, it is, in the absence of binding regulation under European Union law on the subject, for Member States to establish and apply national rules on the right of access, by persons adversely affected by a cartel, to documents relating to leniency procedures. However, in the consideration of such an application for access submitted by a person who is seeking to obtain damages from another person who has taken advantage of such a leniency programme, it is necessary to ensure that the applicable national rules are not less favourable than those governing similar domestic claims and that they do not operate in such a way as to make it practically impossible or excessively difficult to obtain such compensation and to weigh the respective interests in favour of disclosure of the information and in favour of the protection of that information provided voluntarily by the applicant for leniency. That weighing exercise can be conducted by the national courts and tribunals only on a case‑by‑case basis, according to national law, and taking into account all the relevant factors in the case.

(see paras 23, 30-32, operative part)