ECJ specifies requirements for access to Commission file in cartel proceedings

In its judgement of 7 October 2014 (T-534/11 – Schenker), the ECJ established detailed requirements to satisfy the European Commission’s transparency obligation in cartel proceedings. The proceedings must be seen in connection with a decision of the Commission to impose a fine in the air cargo case of 2010, the public non-confidential version of which has not so far been issued. In order to pursue damages claims against the cartel members, Schenker AG made several applications for comprehensive access to the Commission’s file on the case. The Commission refused to disclose the information requested. Most of the legal questions inherent in the claims against the Commission decision relate to the application of the principles on the relationship between the Transparency Regulation and the Cartel Proceedings Regulation developed by the ECJ in a judgement of February this year (C-365/12 P – EnBW).

The present judgement further clarifies that, in principle, the Commission has an obligation to provide an applicant with a non-confidential version of a cartel infringement decision. The ECJ grants the Commission considerable flexibility regarding the timeframe for the general publication of the final non-confidential decision depending on the number and complexity of claims for confidentiality. On the other hand, the ECJ states clearly that the Commission is not prevented from providing the applicant in advance with access to that part of the non-confidential version to which none of the claims for confidentiality refers.  Otherwise, the cartel participants concerned would have the possibility to strategically prolong the publication process. The judgement may be subject to appeal.

The approach of the ECJ may facilitate cartel victims in obtaining at least partial access at an earlier stage to Commission decisions. In addition, it again underlines the importance of decisions of the competition authorities for private cartel law enforcement.