Pfleiderer AG v Bundeskartellamt.

• Jurisdiction: European Union
• Celex Number: 62009CJ0360
• ECLI: ECLI:EU:C:2011:389
• Docket Number: C-360/09
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 14 June 2011

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)

JUDGMENT OF THE COURT (Grand Chamber)

14 June 2011 (*)

(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)

In Case C‑360/09,

REFERENCE for a preliminary ruling under Article 234 EC from the Amtsgericht Bonn (Germany), made by decision of 4 August 2009, received at the Court on 9 September 2009, in the proceedings

Pfleiderer AG

v

Bundeskartellamt,

THE COURT (Grand Chamber),

composed of A. Tizzano, President of the First Chamber, acting for the President, J.N. Cunha Rodrigues, K. Lenaerts and J.‑C. Bonichot, Presidents of Chambers, E. Juhász (Rapporteur), G. Arestis, A. Borg Barthet, M. Ilešič, J. Malenovský, L. Bay Larsen and T. von Danwitz, Judges,

Advocate General: J. Mazák,

Registrar: B. Fülöp, Administrator,

having regard to the written procedure and further to the hearing on 14 September 2010,

after considering the observations submitted on behalf of:

– Pfleiderer AG, by T. Kapp, M. Schrödl and M. Kuhlenkamp, Rechtsanwälte,

– Munksjö Paper GmbH, by H. Meyer-Lindemann, Rechtsanwalt,

– Arjo Wiggins Deutschland GmbH, by R. Polley and S. Heinz, Rechtsanwältinnen, and by O. Ban, acting as an authorised representative,

– Felix Schoeller Holding GmbH & Co. KG and Technocell Dekor GmbH & Co. KG, by T. Mäger and D. Zimmer, Rechtsanwälte,

– Interprint GmbH & Co. KG, by T. Veltins, Rechtsanwalt,

– the German Government, by M. Lumma, J. Möller and C. Blaschke, acting as Agents,

– the Belgian Government, by J.-C. Halleux, acting as Agent,

– the Czech Government, by M. Smolek and T. Müller, acting as Agents,

– the Spanish Government, by J. Rodríguez Cárcamo, acting as Agent,

– the Italian Government, by G. Palmieri, acting as Agent, assisted by F. Arena, avvocato dello Stato,

– the Cypriot Government, by D. Kallí, acting as Agent,

– the Netherlands Government, by Y. de Vries, acting as Agent,

– the European Commission, by V. Di Bucci, P. Costa de Oliveira and A. Antoniadis, acting as Agents,

– the EFTA Surveillance Authority, by X. Lewis and M. Schneider, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 16 December 2010,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of Articles 11 and 12 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1) and the second paragraph of Article 10 EC, read in conjunction with Article 3(1)(g) EC.

2 The reference has been made in the context of proceedings between Pfleiderer AG (‘Pfleiderer’) and the Bundeskartellamt (the German competition authority) concerning an application for full access to the file relating to the imposition of a fine as a result of a cartel in the decor paper sector. The application for access, which extends to the documents relating to the leniency procedure, was made by Pfleiderer, a customer of the fined undertakings, in order to prepare a civil action for damages.

Legal context

European Union legislation

3 The first...