access to competition file as a precondition of access to justice
DESCRIPTION
The information to be disclosed that I discuss about in the present paper relates to the content of the antitrust files produced by Competition Authorities in the EU. All officials working for any Competition Authority are required even after their duties have ceased, not to disclose information of the kind covered by the duty of professional secrecy, in particular information about undertakings. This information may be disclosed to other Competition Authorities in the EU and even outside the EU, based on principles such as reciprocity, comity and the condition that the duty of professional secrecy applies also for the receiver. As known national courts may act as competition authorities since the organization of enforcement at the national level is an issue determined by the national legislation. The access of a potential claimant for antitrust damages to the public proceedings files falls within the scope of national procedural autonomy, thus the matter will be judged against the standard of effectiveness and equivalence imposed by Union law .TRANSCRIPT
A dialectical approach to justice and effective competition
Access to Competition file as a precondition of
access to justice
Presentation of a synopsis for PhD thesis
Emanuela Matei, LL.M [email protected]
0046-735576666
1. Openness 2. Effective competition3. Access to justice4. Data protection 5. Comity6. Sincere cooperation
6 fundamental principles of Union law
1. GENERAL ASPECT: Democracy & enhancing legitimacy2. PARTICULAR ASPECT: Right of access to documents,
effective protection of individual rights arising from the treaty
Openness, 2 dimensions
1. Any citizen of the Union +2. Any natural /legal person residing in a MS or3. Having its registered office in a MS4. Documents of the institutions, bodies, offices and
agencies of the Union, whatever their medium.
Right of access to documents
1. National courts are close to European citizens2. Role in safeguarding the rights of individuals within
their jurisdiction which are conferred directly by Union law
Modernisation of EU competition law
1. contractual liability proceedings (disputes between parties to an agreement),
2. non-contractual liability proceedings (disputes between a third party and one or more parties to the agreement) and
3. applications for injunctions.
Proceedings under Article 101 TFEU
1. Infringement ACCESS TO COMPETITION FILE2. Damage3. Causality
Non-contractual liability proceedings
1. 14 Jun 2011 – Pfleiderer – Germany2. National Grid Electricity Transmission – UK3. Pending – Donau Chemie – Austria4. 21 Dec 2012 – DB Schenker – EFTA/Norway
Case law access to documents before EEA courts
Air Cargo Shipping Services Antitrust Litigation – Global Cartel – U.S. Court – amicus curiae – comity – forum non-conveniens – Private International Laws
Case law access to documents before non-EEA courts
1. Brussels I Regulation 44/2001 (EU except Denmark)2. Brussels I Convention on jurisdiction and the
enforcement of judgments in civil and commercial matters 1968 (Territories outside the EU)
3. Lugano Convention 1988 (Denmark, Iceland, Norway, Switzerland)
4. International principles
FORUM rules- Contracting/Member State
1. Defendant domiciled in a MS: Art 2 of Regulation 44/2001
2. Defendant domiciled in Norway, Iceland or Switzerland: Art 3 of Lugano Convention
3. Defendant domiciled in a third country
FORUM rules- Contracting/Member State (cont) MAIN RULE
1. Place where the harmful event occurred or may occur: Art 5.3 of Regulation 44/2001 (EU fora)
2. Place where the harmful event occurred- Art 5.3 of Lugano Convention (EFTA fora)
3. Defendant not domiciled in the forum : determined by the law on jurisdiction of the forum.
FORUM rules- Contracting/Member State (cont) SPECIAL RULE
1. Implementation doctrine- EU 2. Effects-based doctrine- Generally accepted3. Single economic entity- Generally accepted
Applicable law rules- EU law infringement
Rome II Regulation 864/2007 (EU except Denmark)ART 6(3) should cover infringements of both national and
Union competition law.
MAIN RULE: the law of the country where the market is, or is likely to be, affected
Applicable law rules – Damages – Universal law
Access to documents – Taking of Evidence – Exchange of documents
Forum non-conveniens? Evidence disclosure rules?Amicus curiae/comity? Good administration of justice
Applicable law rules – Procedures – Law of the forum
If the defendant is domiciled in a non-EEA country then the most probable situation is the following :
Law of the infringement 101 TFEU- effect based doctrine Forum- non EEA country (defendant’s domicile) Tort & procedural – law of the forum
PIL conclusions in case of extraterritorial application
Transparency – ConfidentialityDisclosure – Data protectionPrivate enforcement – Public enforcementInternational relations
Interaction with other interests
Effective competition– Public – Leniency – Equivalence & Effectiveness- Art
19 (1) (2) TEU– Private – Courage doctrine – Article 47 Charter– Intra v Extraterritorial enforcement
Dialectics of competition
Axiom 1: The very core of the right to civil damages for antitrust infringements must remain intact in any circumstances. (DEB doctrine)
Axiom 2: The maintenance of effective competition via private enforcement proceedings constitutes undeniably an ‘overriding public interest’ (Courage and Crehan doctrine)
Axiom 3: The member states enjoy procedural autonomy in the domain of private enforcement of supranational competition law. (Rewe doctrine)
Premises
Under which circumstances may a court of a member state while exercising its procedural autonomy, safeguarding the principle of good administration and the right to civil damages restrict the access to documents of prospective plaintiffs?
•Which are the legitimate aims that may justify the non-disclosure?•Is non-disclosure an appropriate and proportional method to attain those legitimate aims?•Under which circumstances the exception of overriding public interest may overturn the protection of the interests supporting the non-disclosure?
Research questions Question 1:
Under which circumstances is the free movement of such documents restricted under EU law?
•Once the prospective plaintiff has obtained access to documents is it allowed under EU law to use the evidence in order to substantiate a similar claim for damages before a Court of a different member state? •Would the answer be different if the Court seized is one of a non-member state? •Can this type of use constitute a form of abuse of the right guaranteed by Article 42 of the Charter? Which are the necessary conditions?
Research questions Question 2:
Is access to documents in civil competition cases a precondition for access to justice?Is document shopping an actual threat to public interest?
Bottom line
Note: Very recently I’ve discovered that the honourable member of the Court of Justice of the European Communities (1982-1999), Federico Mancini wrote a series of articles about the issue and it would be very interesting to inquire whether or not the pitfalls revealed by him are still present today.
Thank you for your attention!