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Antitrust

Actions for Damages > Disclosure of Evidence

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Disclosure of evidence: Amendments to existing rules and the Commission Communication on the protection of confidential information to be disclosed before national courts in actions for private enforcement of EU competition law

On 3 August 2015, the European Commission adopted amendments to Regulation 773/2004 and four related Notices (Access to the File, Leniency, Settlements and Cooperation with National Courts), aimed at aligning them with Directive 2014/104/EU on Antitrust Damages Actions (the "Directive"). These amendments mainly concern the disclosure and use of information from the Commission’s file in damages action proceedings. In addition, the Commission has published additional guidelines related to the disclosure of confidential information before national courts in private enforcement proceedings.

Disclosure of evidence and protection of confidential information included in the file of the Commission and the competition authorities of the Member States

The Directive has two objectives: to ensure that victims of antitrust violations can effectively claim damages (through actions before the national courts of the Member States, or out of court); and to optimise the interrelation between public enforcement by the Commission and national competition authorities and private enforcement by citizens and businesses.

To achieve the second objective, the Directive, prohibits inter alia the use of leniency corporate statements and settlement submissions that undertakings have submitted to the Commission or the competition authority of a Member State in a damages action before a national court. It also limits the use of documents created specifically for the purpose of a competition authority's investigation until after the investigation is closed.

The Directive's rules on disclosure and use of information obtained from competition authorities in antitrust damages actions made necessary to amend some provisions in Regulation 773/2004 and in the four Notices concerning the disclosure and use of information in the Commission's investigative file (see below).

Furthermore, basic concepts of the Commission's leniency and settlement programmes were introduced into hard law, i.e. Regulation 773/2004. Finally, the Notice on Access to the File allowed to return to the parties those documents from the file unrelated to the investigation.

Disclosure and protection of confidential information in national courts

The Directive, in its Article 5(4), stipulates that a national court can order the disclosure of evidence containing confidential information but obliges such a court to protect this confidential information through appropriate mechanisms.

However, national courts might not necessarily have substantial experience in dealing with confidential information. They might also face practical questions on how to effectively protect confidential information without jeopardising the interests of claimants (e.g. victims of infringements), in substantiating their claims.

To support national courts in this task, following a public consultation in 2019, the Commission adopted a Communication that seeks to provide practical guidance to national courts in selecting effective protective measures. The Communication aims provide practical, non-binding and non-exclusive guidance to national courts in selecting the most effective measure to protect confidentiality (e.g. confidentiality ring, redactions, appointment of experts, etc.) when deciding on disclosure requests in the context of damages actions.

The amendments to Regulation 773/2004 and the four related notices:

Public consultation on the proposed modifications took place in 2015. Full texts of the proposed modifications as well as further information on the public consultation and stakeholders' replies can be found here.

  
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