EU and German Competition Law: German Court Refuses Disclosure of Leniency Materials to Cartel Victim

Sullivan & Cromwell LLP - February 28, 2012

On 18 January 2012, the Local Court of Bonn, Germany, dismissed an application by the German company Pfleiderer AG for access to the leniency materials (such as self-incriminating statements) that members of a decor paper cartel had voluntarily provided to the German Federal Cartel Office under the FCO’s leniency policy. Pfleiderer was a customer of the cartelists and sought access to their leniency materials in order to prepare a follow-on action against them for damages. This is the first time a national court in the EU has applied the “balancing test” formulated in June 2011 by the European Court of Justice for EU courts to determine whether to grant disclosure of leniency materials in follow-on damages actions. The German Court’s analysis was incisive and included consideration of the practical implications, as well as the legal implications, of granting Pfleiderer’s request for access to the leniency materials.