Provisional text

delivered on 24 October 2024 (1)

Case C-2/23

FL und KM Baugesellschaft m.b.H. & Co. KG,

S AG

(Request for a preliminary ruling from the Oberlandesgericht Wien (Higher Regional Court, Vienna, Austria))

( Reference for a preliminary ruling – Competition – Access to the file of a competition authority – Limits on the use of evidence and information included in such a file in criminal proceedings – Leniency statements and settlement submissions – Mutual assistance among national authorities )

1.In the past, EU competition law did not lay down common leniency rules or rules governing the right of access to documents relating to leniency proceedings accordingly, access to the files of national competition authorities (‘NCAs’) was governed by national law, and, in some Member States, binding provisions specifically designed for the needs of competition law did not exist. (2) Therefore, it was for the Member States to apply the relevant national rules in accordance with EU law as interpreted by the Court of Justice in its case-law. (3)

2.Directive 2014/104/EU (4) and, subsequently, Directive (EU) 2019/1 (5) changed that situation. The EU legislature chose not to follow fully the path laid out by the Court in its case-law. Indeed, the provisions of those directives relating to granting access to leniency statements and settlement proposals (‘blacklisted documents’) are more restrictive than the case-law of the Court. (6)

3.The questions referred to the Court of Justice for a preliminary ruling in the present case are intended to clarify the scope of the protection afforded by EU law to such documents in the context of criminal proceedings.

II. Legal context

1. Directive 2014/104

4.Article 2(16) of Directive 2014/104 defines the concept of ‘leniency statement’ as ‘an oral or written presentation voluntarily provided by, or on behalf of, an undertaking or a natural person to a[n NCA] or a record thereof, describing the knowledge of that undertaking or natural person of a cartel and describing its role therein, which presentation was drawn up specifically for submission to the [NCA] with a view to obtaining immunity or a reduction of fines under a leniency programme, not including pre-existing information’. Article 2(18) of that directive defines the concept of ‘settlement submission’ as ‘a voluntary presentation by, or on behalf of, an undertaking to a[n NCA] describing the undertaking’s acknowledgement of, or its renunciation to dispute, its participation in an infringement of competition law and its responsibility for that infringement of competition law, which was drawn up specifically to enable the [NCA] to apply a simplified or expedited procedure’.

5.Article 6 of that directive, entitled ‘Disclosure of evidence included in the file of a competition authority’, states as follows, in paragraphs 6 and 7:

‘6. Member States shall ensure that, for the purpose of actions for damages, national courts cannot at any time order a party or a third party to disclose any of the following categories of evidence:

(a) leniency statements; and

(b) settlement submissions.

7. A claimant may present a reasoned request that a national court access the evidence referred to in point (a) or (b) of paragraph 6 for the sole purpose of ensuring that their contents correspond to the definitions in points (16) and (18) of Article 2. In that assessment, national courts may request assistance only from the competent [NCA]. The authors of the evidence in question may also have the possibility to be heard. In no case shall the national court permit other parties or third parties access to that evidence.’

6. Article 7 of the same directive, entitled ‘Limits on the use of evidence obtained solely through access to the file of a competition authority’, states in paragraph 1 that:

‘Member States shall ensure that evidence in the categories listed in Article 6(6) which is obtained by a natural or legal person solely through access to the file of a[n NCA] is either deemed to be inadmissible in actions for damages or is otherwise protected under the applicable national rules to ensure the full effect of the limits on the disclosure of evidence set out in Article 6.’

7. Article 31 of Directive 2019/1, entitled ‘Access to file by parties and limitations on the use of information’, states in paragraphs 3 and 4 that:

‘3. Member States shall ensure that access to [blacklisted documents] is only granted to parties subject to the relevant proceedings and only for the purposes of exercising their rights of defence.

(a) the allocation between cartel participants of a fine imposed jointly and severally on them by a[n NCA]; or

(b) the review of a decision by which a[n NCA] found an infringement of Article 101 or 102 TFEU or national competition law provisions.’

8. Paragraph 22 of the Bundes-Verfassungsgesetz (Federal Constitutional Law) provides that:

‘All bodies of the Federal State, the Länder, the municipalities and associations of municipalities are required, within the scope of their legal spheres of action, to provide each other with mutual assistance.’

9. Paragraph 49 of the Strafprozessordnung (Code of Criminal Procedure), in the version applicable to the facts in the main proceedings, establishes, inter alia, that the person under investigation has the right to consult the file, whereas victims, civil parties or private accusers have access to the file only in so far as is necessary to protect their interests.

10. Paragraph 51 of that code states:

‘1. The person under investigation has the right to be informed of the results of the investigation and of the main proceedings available to the criminal police, the public prosecutor’s office and the judiciary. …

11. According to Paragraph 65(2) of that code:

‘A civil party is any victim who declares that he or she is taking part in the proceedings in order to claim compensation for harm or injury suffered.’

12. Point 2 of Paragraph 66(1) of that code states:

‘Victims – regardless of their status as civil parties – have the right to consult the case file (Paragraph 68 [of the Code of Criminal Procedure]).’

13. Paragraph 68 of the Code of Criminal Procedure is worded as follows:

‘1. The civil party and the Privatankläger (private accuser) have the right to consult the file in so far as their interests are concerned; … furthermore, consultation of the file may be refused or restricted only (exclusively) in so far as it would compromise the purpose of the investigation or an uninfluenced witness statement.

14. Paragraph 76 of that code states:

‘1. The criminal police, the public prosecutor’s office and the courts are entitled, in the performance of their duties under this law, to call directly upon the assistance of all public authorities and services of the Federal State, the Länder and the municipalities, as well as other public bodies and institutions established by law. …

III. The facts giving rise to the dispute in the main proceedings, the proceedings before the Court and the questions referred for a preliminary ruling

15.The applicants in the main proceedings are construction companies and are the subject of criminal investigation proceedings initiated by the public prosecutor’s office concerning agreements restricting competition in procurement procedures under Paragraph 168b(1) of the Criminal Code and other criminal offences, involving numerous other companies and their managers.

16.Between 2006 and 2020, the applicants in the main proceedings are suspected of having systematically and repeatedly submitted requests to participate in public procurement procedures, submitted bids or conducted negotiations based on unlawful agreements designed to induce contracting authorities to accept a particular bid. They and others are also suspected of having entered into price agreements, shared markets and exchanged information with competitors regarding public and private tenders. That criminal investigation procedure also covers suspicions of corruption, as well as the acceptance of gifts and the bribery of agents or representatives in the public sector or close to the State.

17.In parallel with that criminal investigation, the Bundeswettbewerbsbehörde (Federal Competition Authority, Austria) initiated cartel proceedings against those parties before the Oberlandesgericht Wien (Higher Regional Court, Vienna, Austria), in its capacity as a cartel court, with a view to imposing fines.

18.In the context of those cartel proceedings, the applicants in the main proceedings submitted a leniency application with that court on 2 July 2019. As a result of their participation in the leniency programme, on 14 July 2021 the Federal Competition Authority filed an application with that court for a reduction in the fine imposed on the applicants in the main proceedings. The court imposed a reduced fine on the applicants in the main proceedings on 21 October 2021, in accordance with that request.

19.Following the request made by the public prosecutor’s office on 22 July 2021 in the context of administrative assistance, the Oberlandesgericht Wien (Higher Regional Court, Vienna), sent a copy of its file to that office.

20.On 7 October 2021, the public prosecutor’s office requested the Federal Competition Authority to provide it with certain documents relating to its proceedings, in the context of administrative assistance. On the basis of the protection provided for in Directive 2019/1 for the documents transmitted, that authority granted the request.

21.The public prosecutor’s office added the documents deemed relevant to the criminal case to the criminal investigation file, including the blacklisted documents and their associated annexes, and then instructed the police to carry out further investigations on the basis of the information thereby obtained.

22.The applicants in the main proceedings requested the public prosecutor’s office not to include the blacklisted documents, including the associated annexes, in the case file and not to use those documents and, in any event, to exclude them permanently in the case where the file were to be accessed by any of the parties under investigation or the injured parties.

23.The public prosecutor’s office did not comply with that request. It also refused permanently to exclude access to the documents in question. However, it partially and provisionally excluded certain parts of the documents transmitted, in particular the blacklisted documents, in the case where the file were to be accessed by the parties under investigation or injured parties pending final clarification of that issue by the court.

24.The applicants in the main proceedings lodged an objection against the decision by the public prosecutor, who referred the matter to the court of first instance That court dismissed the objection. The applicants then appealed that court’s decision before the referring court, the Oberlandesgericht Wien (Higher Regional Court, Vienna).

25.According to the referring court, it is possible – on the basis of Article 6(6) and (7) of Directive 2014/104 and Article 31(3) of Directive 2019/1 – to make the argument that protection against disclosure of blacklisted documents, as provided for in those directives, must be a broad protection which applies to any third party and, therefore, also applies to courts or authorities and parties to criminal investigation proceedings. That view is supported by Article 13(4) of Directive 2019/1, which establishes that national laws allowing for penalties to be imposed in criminal judicial proceedings are not affected by that article, provided that the application of such laws does not affect the effective and uniform enforcement of Articles 101 and 102 TFEU.

26.However, the referring court indicates that, under Paragraph 22 of the Federal Constitutional Law, in conjunction with Paragraph 76 of the Code of Criminal Procedure, the competent cartel court and the Federal Competition Authority have an obligation in principle to provide administrative and judicial assistance. The national legal framework lays down no limitations on the obligation to provide assistance. The documents on the blacklist are therefore in principle accessible to all parties under investigation and injured parties who have access to the file. Those persons may subsequently use the information obtained in that way, in particular to assert rights to damages.

27.In those circumstances, the Oberlandesgericht Wien (Higher Regional Court, Vienna) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Are the provisions of EU competition law – in particular [Article 6(6) and (7) and Article 7(1) of Directive 2014/104] as well as [Article 31(3) of Directive 2019/1] – to be interpreted as meaning that the protection laid down therein of [blacklisted documents] and information obtained from them has absolute effect, applying also to prosecution authorities (public prosecutors and criminal courts), so that [blacklisted documents] may not be added to the file in criminal proceedings and used as the basis for further enquiries?

(2) Are the provisions of EU competition law – in particular [Article 6(6) and (7) and Article 7(1) of Directive 2014/104] as well as [Article 31(3) of Directive 2019/1] – to be interpreted as meaning that the absolute protection of [blacklisted documents] (within the meaning of Question 1) also covers documents and information obtained therefrom which the person lodging a leniency statement or settlement submission has presented in order to explain, specify in detail and prove the content of the [blacklisted document]?

(3) Are the provisions of EU competition law – in particular [Article 6(6) and (7) and Article 7(1) of Directive 2014/104] as well as [Article 31(3) of Directive 2019/1] – to be interpreted as meaning that the protection laid down therein [of blacklisted documents] (and documents within the meaning of Question 2) and information obtained therefrom has absolute effect, applying in criminal proceedings, on the one hand, also against accused persons who are not the authors of the respective [blacklisted documents] and, on the other hand, against other participants in the criminal proceedings (in particular injured parties asserting claims under civil law), so that accused persons and injured parties are not to be permitted to inspect [blacklisted documents] and the documents presented in that connection and information obtained therefrom?’

28.Written observations were submitted by the parties in the main proceedings and by the Greek and Italian Governments and the European Commission. With the exception of the Greek Government, all of those parties, as well as the Austrian Government, took part in the hearing held on 5 June 2024.

29.The referring court referred three questions in the present case. While the first question concerns access by law enforcement authorities to blacklisted documents and the information derived from them, the third concerns access by individuals to such documents and information. That last question is asked only in the event that the Court answers the first question in the negative.

30.In addition, if the first question is answered in the affirmative, the second question seeks to clarify the ‘scope’ of the protection afforded by EU law to documents adduced by the authors of blacklisted documents. More specifically, the second question concerns whether that protection also covers documents adduced to explain, specify in detail and prove the content of blacklisted documents. In view of the fact that I propose to answer the first question in the negative, there is no need, a priori, to answer the second question. However, I will analyse that question after the third question in order to clarify the scope of the protection afforded to the documents in question with regard to individuals.

31.By its first question, the referring court is asking, in essence, whether EU competition law, in particular Article 6(6) and (7) and Article 7(1) of Directive 2014/104, and Article 31(3) of Directive 2019/1, ought to be interpreted as precluding blacklisted documents from being included by a law enforcement authority in the case file of the criminal proceedings and from being used as a basis for further investigations.

32.The purpose of that question is to determine whether the protection of blacklisted documents and the information derived from them, which is provided for in Directive 2014/104 and Directive 2019/1, also applies with regard to law enforcement authorities. A positive response to that question would result in such authorities being prohibited from adding the documents and information concerned to case files of criminal proceedings and from ordering further investigative actions on the basis of those documents.

33.In addition, the first question, as formulated by the referring court, concerns Directive 2014/104 and Directive 2019/1. That question therefore presupposes that the protection afforded by those directives to blacklisted documents applies with regard to law enforcement authorities. For reasons I will explain below, I do not agree with that supposition. I consider that access by law enforcement authorities to such documents is not governed by those directives and that Member States must therefore lay down national rules governing administrative assistance between national authorities, provided that those rules guarantee adequate protection for the practical effect of EU law and, more specifically, of Article 101 TFEU. I therefore propose that the first question be reworded so that, in essence, the referring court is asking whether EU competition law, in particular, Directive 2014/104 and Directive 2019/1, as well as Article 101 TFEU, preclude blacklisted documents from being included by a law enforcement authority in the case file of the criminal proceedings and from being used as a basis for further investigations.

1. Directive 2014/104

(a) The regime for protecting blacklisted documents

34.Directive 2014/104 does not establish rules on leniency programmes and the effects of such programmes on the liability of the persons concerned. However, as is clear from Article 1(2), that directive sets out rules coordinating, on the one hand, the enforcement of the competition rules by NCAs and, on the other, the enforcement of those rules in damages actions before national courts.

35.In that context, Article 5 of Directive 2014/104 lays down general rules on the disclosure of evidence, while Article 6 of that directive supplements that general regime with rules which specifically concern the disclosure of evidence in the file of an NCA. That second provision distinguishes between a number of categories of evidence, including:

– in the first place, information prepared by a natural or legal person specifically for the purposes of proceedings brought by an NCA, information which the NCA has drawn up and sent to the parties in the course of its proceedings and settlement submissions that have been withdrawn, since Article 6(5) of that directive provides that national courts may order the disclosure of those categories of evidence only after an NCA, by adopting a decision or otherwise, has closed its proceedings;

– in the second place, blacklisted documents for actions for damages, since Article 6(6) of that directive provides that Member States are to ensure that national courts cannot at any time order their disclosure; and

– in the third place, evidence in the file of an NCA that does not fall into any of the categories listed in Article 6 of that directive, paragraph 9 of which states that disclosure of such documents may be ordered at any time in actions for damages, without prejudice to that article.

36.The questions referred for a preliminary ruling primarily concern blacklisted documents. While Directive 2014/104 and Directive 2019/1 reserve different treatment for other categories of evidence, such as settlement submissions that have been withdrawn, (7) there is nothing to suggest that that was so in the main proceedings. In fact, a reduced fine appears to have been imposed on the applicants in the main proceedings on the basis of the leniency statements. (8) I will therefore focus on blacklisted documents and the scope of the protection afforded to them.

37.In that regard, Article 6(6) of Directive 2014/104 prohibits national courts with jurisdiction to enforce competition law in the private sphere from ordering the disclosure of blacklisted documents. To ensure that that prohibition does not unduly interfere with an injured party’s right to compensation, the first sentence of Article 6(7) of that directive provides that ‘a claimant’ may present a reasoned request that a national court access blacklisted evidence for the sole purpose of ensuring that it is actually blacklisted. In accordance with the fourth sentence of Article 6(7) of that directive, in no case may a national court permit other parties or third parties access to such evidence before it has completed its assessment. If only parts of the evidence requested are covered by Article 6(6) of that directive, the remaining parts of that evidence are, depending on the category under which they fall, to be released in accordance with the relevant paragraphs of that article. (9)

38.In line with the logic underpinning Article 6(6) and (7) of Directive 2014/104, Article 7(1) of that directive requires Member States to ensure the full effect of the limits set out in Article 6. In essence, Article 6(6) and (7) of Directive 2014/104 concerns access to blacklisted documents, while Article 7(1) of that directive concerns limits on their use.

(b) The scope of the regime for protecting blacklisted documents

39.In order to determine whether the questions referred for a preliminary ruling can be answered on the basis of Directive 2014/104, it is necessary to examine the context in which Article 6(6) and (7) and Article 7(1) of that directive are intended to apply.

40.In that regard, it is true that recital 26 of Directive 2014/104 states, inter alia, that ‘[disclosure of self-incriminating statements] would pose a risk of exposing cooperating undertakings or their managing staff to civil or criminal liability under conditions worse than those of co-infringers not cooperating with the [NCAs]’ (10). However, although that recital refers to the risk of criminal liability following disclosure of the documents concerned, the legislature has not introduced any provisions to remedy that risk. In fact, that directive contains no provisions directly governing the issue of access to the file of an NCA by authorities other than a court with jurisdiction relating to damages.

41.Indeed, Article 1(2) of Directive 2014/104 clarifies that the directive establishes rules applicable ‘in damages actions’. In that regard, the Court of Justice has already indicated that the material scope of that directive, including, therefore, the scope of Article 6(6) thereof, is limited solely to actions for damages brought for infringements of the competition rules and, therefore, does not extend to other types of action. (11)

42.In addition, an analysis of the relevant provisions of Directive 2014/104 supports the view that that directive concerns only access to blacklisted documents and their use for the purposes of an action for damages. First, Article 5(1) of the directive states that, ‘in proceedings relating to an action for damages’, a claimant must be able to request that a defendant or third party disclose relevant evidence which lies in its control, subject to compliance with the conditions laid down in Articles 5 to 8 of that directive. Next, Article 6(1) of Directive 2014/104 states that, ‘for the purpose of actions for damages’, where national courts order the disclosure of evidence included in the file of an NCA, that article applies ‘in addition to Article 5’. Lastly, Article 7(1) of that directive establishes limits on the use of those documents ‘in actions for damages’.

43.Accordingly, it should be observed that all the provisions of Directive 2014/104 relating to the protection of blacklisted documents concern proceedings for damages, for the purposes of which the court with jurisdiction in the matter orders a party to such proceedings, a third party or an NCA (12) to disclose evidence, (13) or for the purposes of which such documents are used. (14)

(c) Directive 2014/104 in the context of criminal proceedings

44.It should be noted that, in the main proceedings, the issue in question is whether the public prosecutor’s office is able to obtain blacklisted documents from an NCA and/or a court with jurisdiction in the matter, so as to include them in the case file in the context of criminal proceedings and to use them for other investigations.

45.In that regard, the public prosecutor’s office is not acting as an applicant requesting the court with jurisdiction relating to damages to order the disclosure of evidence. Neither is that office acting as a court of competent jurisdiction ordering the disclosure of such evidence by an NCA and/or a court of competent jurisdiction.

46.Accordingly, the first question does not concern the disclosure of those documents ‘for the purpose of an action for damages’, within the meaning of Article 6(1) and (6) of Directive 2014/104. Neither does that question concern the use of such documents in the context of the private enforcement of competition law, as referred to in Article 7(1) of that directive, since the public prosecutor’s office is not acting as a party in that sphere of private enforcement.

47.Directive 2014/104 should therefore not be regarded as governing the question of whether the law enforcement authorities of a Member State may have access to blacklisted documents and include them in the files of the cases for which they are responsible.

(a) The regime for protecting blacklisted documents

48.While Directive 2014/104 lays down the procedures for enforcing competition law in the private sphere (private enforcement), Directive 2019/1 aims to strengthen the enforcement of competition law in the public sphere (public enforcement). Article 1(1) of Directive (EU) 2019/1 provides that that directive establishes certain rules to ensure that NCAs have the necessary guarantees of independence, resources, and enforcement and fining powers to be able to effectively apply Articles 101 and 102 TFEU.

49.

On that point, recital 50 of Directive 2019/1 confirms that the EU legislature has recognised the importance of leniency programmes for public enforcement of competition law. As stated in that recital, leniency programmes ‘are a key tool for the detection of secret cartels, and thus contribute to the efficient prosecution of, and the imposition of penalties for, the most serious infringements of competition law’. To ensure the effective use of that tool, Articles 17 to 23 of that directive lay down rules on leniency programmes for secret cartels and their implications for the liability of leniency applicants.

50.

The EU legislature has also recognised that the risk of self-incriminating material being disclosed outside the context of the investigation for the purposes of which it was provided could weaken the incentives for potential leniency applicants to cooperate with competition authorities. (15) Article 31(3) and (4) of Directive 2019/1 therefore lays down rules relating to the protection of evidence established for the purposes of a leniency programme, in order to supplement Articles 17 to 23 of that directive. Accordingly, under Article 31(3) of that directive, access to blacklisted documents may only be granted ‘to parties subject to the relevant proceedings and only for the purposes of exercising their rights of defence’. That provision therefore determines the circle of persons entitled to obtain access to those documents and the legitimate purpose of such access. In addition, Article 31(4) of that directive lays down limits on the use of information obtained through access to the file of an NCA.

(b) The scope of the regime for protecting blacklisted documents

51.

Article 31(3) and (4) of Directive 2019/1 guarantees protection for blacklisted documents which is almost identical to that afforded to blacklisted documents drawn up for the purposes of proceedings conducted by the Commission. (16) That directive therefore supplements the protection regime for leniency programmes within the EU.

52.

More importantly, Article 31(3) and (4) of Directive 2019/1 was designed to complement the protection afforded to blacklisted documents by Directive 2014/104. An analysis of the preparatory work suggests that the legislature started from the premiss that Directive 2014/104 had harmonised the protection of blacklisted documents in the context of actions for damages before national courts. However, that directive did not address other scenarios, such as the use of such documents in other civil, administrative or criminal proceedings or in case of access by the public at large through ‘transparency’ rules or public access to documents. In those other scenarios, the level of protection granted for such documents varies significantly between Member States. (17) From that, I infer that Directive 2019/1 is intended to harmonise the rules applicable in that area.

53.

Furthermore, I note that the scope of Article 31(3) and (4) of Directive 2019/1 does not coincide with that of other provisions of that directive. Article 1(2) of that directive, read in the light of recital 4 thereof, (18) clarifies that the directive covers the application of Articles 101 and 102 TFEU and the parallel application of national competition law to the same case, whereas Article 31(3) and (4) of that directive specifies that the protection of leniency statements and settlement submissions, provided for in Article 31(3) and (4) of that directive, also covers the stand-alone application of the provisions of national competition law.

54.

With regard to Directive 2019/1, the Commission took the view in its proposal for a directive that, in order to protect leniency and settlement mechanisms effectively, it was necessary to ensure the protection of blacklisted documents not only for proceedings under Articles 101 and 102 TFEU before the NCAs, but also for the stand-alone application of equivalent national provisions. (19) Indeed, differences between the solutions provided under national law for the protection of blacklisted documents could have weakened the effectiveness of leniency programmes. That is what Article 1(2) of that directive intended to change. (20) In the same vein, the authors of the academic literature considered that that extension to the scope of that directive was due to the desire on the part of the EU legislature to ensure that companies continue to be encouraged to disclose blacklisted documents, which are in principle self-incriminating and highly sensitive, and to present them without worrying whether an NCA will decide to apply only national competition law. (21)

55.

Accordingly, first, the protection provided for in Article 31(3) of Directive 2019/1 is afforded to blacklisted documents irrespective of the context in which their disclosure could compromise the effectiveness of the leniency programme. (22) Second, that protection is afforded to blacklisted documents drawn up for proceedings relating to the enforcement of both Articles 101 or 102 TFEU and national provisions, applied on a stand-alone basis, which pursue essentially the same objective as Articles 101 and 102 TFEU. (23)

(c) Directive 2019/1 in the context of criminal proceedings

56.

From the considerations set out in point 55 of the present Opinion, I infer that Article 31(3) of Directive 2019/1 applies where there is a question of access to a blacklisted document arising from a proceeding enforcing Articles 101 or 102 TFEU and/or national competition law. Accordingly, subject to specific provisions of EU law, such as those of Directive 2014/104 relating to actions for damages, Article 31(3) of Directive 2019/1 governs the protection of such documents in any proceedings before national courts.

57.

However, Article 31(3) of Directive 2019/1 cannot be regarded as exhaustive and blacklisted documents may only be consulted by the persons on the list provided in that provision (‘parties subject to the relevant proceedings’).

58.

In the first place, Article 31 of Directive 2019/1 is headed ‘Access to file by parties and limitations on the use of information’. Accordingly, broadly speaking, Article 31(3) of that directive concerns only access by the ‘parties’, or indeed individuals, to the file of the proceedings before an NCA.

59.

In the second place, as the Commission observes, access to the file and administrative assistance are separate legal instruments. Access to the file is intended to enable the parties to proceedings to exercise their rights of defence or to assert their rights, whereas administrative assistance is the help provided by one authority to another. That distinction also appears to have been made by the Commission in a notice (24) clarifying the application of the system for protecting blacklisted documents drawn up for the purposes of proceedings before it. It is important to remember that Directive 2019/1 lays down a system which is complementary thereto (25).

60.

In the third place, and in the same context, it is true that Article 31(6) of Directive 2019/1 concerns the exchange of leniency statements between the NCAs of the various Member States. In accordance with that provision, such statements are exchanged pursuant to Article 12 of Regulation (EC) No 1/2003 (26) and subject to compliance with the conditions laid down therein. Article 31(6) of Directive 2019/1 may therefore give the impression that that directive authorises only such an exchange of blacklisted documents. However, I do not think that that interpretation ought to be adopted.

61.

Article 12(1) of Regulation No 1/2003 provides that, for the purpose of applying Articles 101 and 102 TFEU, the Commission and the NCAs of the Member States are to have the power to provide one another with, and use in evidence, any matter of fact or of law, including confidential information, while Article 12(2), in particular, lays down the conditions under which that information can be used. (27) That provision pursues the specific objective of simplifying and encouraging cooperation between the authorities within the European Competition Network by facilitating the exchange of information, without, however, limiting the Commission’s ability to use information transmitted by national authorities other than Member States’ NCAs. (28) Article 31(6) of Directive 2019/1, which lays down additional conditions applicable to blacklisted documents, is intended solely to supplement that system of cooperation between Member States. In that same vein, Articles 24 to 26 of that directive lay down rules on cooperation between NCAs. However, neither Article 31(3) nor Articles 24 to 26 of that directive concern the exchange of blacklisted documents between authorities within the same Member State.

62.

There is therefore reason to consider that the answer to the first question – and, consequently, the answer to the second question – cannot be found either in Directive 2014/104 (29) or in Directive 2019/1. (30) Those directives do not govern the issue of administrative assistance between the public authorities of a Member State. Given the absence of binding EU rules law in that area, it is for the Member States to establish and apply national rules governing administrative assistance between national authorities, provided that those rules guarantee adequate protection of the practical effect of EU law.

3. Administrative assistance and the practical effect of European Union law

63.

Although the referring court does not expressly give a ruling on that question, the order for reference suggests that the proceedings before the Federal Competition Authority in which the blacklisted documents referred to in the questions referred for a preliminary ruling were drawn up are intended to enforce Article 101 TFEU and the relevant national competition law.

64.

The question therefore arises as to whether the practical effect of Article 101 TFEU can be called into question by a law enforcement authority’s access to blacklisted documents and the inclusion of those documents in the case file of a criminal proceeding.

65.

Admittedly, in response to a request for clarification from the Court, the referring court stated that the criminal investigation proceeding at issue in the main proceedings does not involve the application of national competition law or of provisions pursuing the same objectives as Article 101 TFEU.

66.

However, the practical effect of Article 101 TFEU may also be compromised by proceedings which are not intended to enforce that provision of EU law. In that regard, under Article 4(3) TEU, Member States are required to ensure they do not undermine – through their national legislation – the full and uniform application of EU law and may not introduce or maintain in force measures which may render ineffective the competition rules applicable to undertakings. (31) That consideration echoes Article 13 of Directive 2019/1, which is headed ‘Fines on undertakings and associations of undertakings’, paragraph 4 of which states that that article is without prejudice to national laws allowing for the imposition of sanctions in criminal judicial proceedings provided that the application of such laws does not affect the effective and uniform enforcement of Articles 101 and 102 TFEU.

67.

The referring court has indicated that an answer to the first question in the negative would mean that the public prosecutor’s office could include the blacklisted documents in the case file and order further investigative actions on the basis of those documents (‘use them for other investigations’). If they were granted access to the file, the persons referred to in the third question would be able to consult those documents and potentially use them against the leniency applicants.

68.

Accordingly, the first question referred does not appear to relate to the risk that law enforcement authorities might use the blacklisted documents to assert liability on the part of the leniency applicants or their staff. The purpose of protecting those documents from the public authorities, which is the subject of that question, is to prevent access to the documents by persons under investigation who are not the authors of the documents and by other parties to the criminal proceedings, in particular, by injured parties asserting civil claims.

69.

In that regard, although Directive 2014/104 and Directive 2019/1 do not apply to administrative assistance between national authorities of the same Member State, (32) the risks associated with the disclosure of self-incriminating documents, identified by those directives, also arise in the context of such assistance. Those risks could weaken the incentive for potential leniency applicants to cooperate with the NCAs and, as a result, undermine the effectiveness of the policy of preventing infringements of Article 101 TFEU. The administrative assistance at issue in the main proceedings cannot therefore result in the protection afforded to blacklisted documents from access by individuals being compromised by the fact that a law enforcement authority has access to the file. I will examine the requirements for such protection, as laid down by Directive 2014/104 and Directive 2019/1, in my analysis of the second and third questions.

70.

The answer to the first question should therefore, provisionally, be that EU competition law – in particular Directive 2014/104 and Directive 2019/1 – does not govern the question of whether leniency statements and settlement submissions may be included by a law enforcement authority in the case file in criminal proceedings and may be used as the basis for further investigations. Article 101 TFEU must be interpreted as meaning that – subject to the answers to the second and third questions – it does not preclude blacklisted documents from being included by a law enforcement authority in the case file in criminal proceedings and serving as a basis for further investigations.

71.

The third question referred for a preliminary ruling is relevant if the Court answers the first question to the effect that the protection afforded by EU law to blacklisted documents does not apply to law enforcement authorities and that those documents may therefore be included in case files of criminal proceedings. In view of my proposed answer to the first question, (33) I will now analyse the third question.

72.

By its third question, which has two parts, the referring court is seeking to ascertain whether Article 6(6) and (7) and Article 7(1) of Directive 2014/104 and Article 31(3) of Directive 2019/1 must be interpreted as precluding national legislation which allows (i) civil parties to criminal proceedings which do not concern an infringement of competition law and (ii) persons under investigation in such proceedings, other than the authors of the blacklisted documents, to obtain access to those documents included by a law enforcement authority in the case file of the criminal proceedings.

1. Access to the file by civil parties to criminal proceedings

73.

With regard to the role of civil parties in the main proceedings, the referring court states that, under Austrian law, persons who consider themselves to have suffered damage may pursue claims under private law in the context of criminal proceedings. More specifically, such persons may seek compensation for the injury suffered as a result of an infringement or compensation on the grounds that their legal interests protected by criminal law have been harmed.

74.

In so far as the third question refers to the provisions of Directive 2014/104 and Directive 2019/1, it presupposes that those two directives govern access by individuals to blacklisted documents included by the public prosecutor’s office in case files of criminal proceedings. To be able to answer that question on the basis of the relevant provisions, it is necessary to verify whether that presumption is true.

75.

In that regard, it should be noted that the relevant provisions of Directive 2014/104 concern access to and limits on the use of blacklisted documents in proceedings for damages for an infringement of competition law, (34) whereas Article 31(3) of Directive 2019/1 concerns access to information taken from such documents in any other proceedings not the subject of specific regulation by EU law. (35) The relevant provisions of Directive 2014/104 can therefore be described as lex specialis in relation to the relevant provisions of Directive 2019/1.

76.

In view of the specific nature of the case in the main proceedings, (36) it is necessary first to determine whether the relevant provisions of Directive 2014/104 are also intended to apply in criminal proceedings in the context of which the civil parties are seeking compensation for damage.

(a) Directive 2014/104

77.

As I have already indicated, (37) Directive 2014/104 applies to actions for damages. Such an action is defined, in Article 2(4) of that directive, as an action under national law by which a claim for damages is brought before a national court. Article 2(9) of the directive defines the concept of ‘national court or tribunal’ by reference to Article 267 TFEU, without specifying whether such courts or tribunals must have jurisdiction exclusively for civil matters.

78.

In addition, I note that, in another context, the Court has already been called upon to clarify whether an action for damages brought before a criminal court may fall within the scope of a convention that ‘shall apply in civil and commercial matters whatever the nature of the court or tribunal’. The Court held that such a convention also applies to decisions given in civil matters by a criminal court. (38) In line with that reasoning, such a convention should also apply to proceedings conducted by a criminal court called upon to rule, in particular, on an action in civil matters.

79.

In the same vein, it should be noted that the fact that a civil action for damages, within the meaning of Directive 2014/104, is brought in the context of criminal proceedings does not change the nature of that action. It is nonetheless a civil action brought in the context of the private enforcement of competition law and is capable of falling within the scope of that directive. More importantly, the protection afforded by Article 6(6) of that directive to blacklisted documents cannot be compromised by the nature of the proceedings which, as to their form, are criminal proceedings but which, from the point of view of the parties involved, have the characteristics of proceedings for damages.

80.

Accordingly, generally speaking, the civil component of criminal proceedings by which a person who considers himself or herself to have been injured seeks to obtain compensation for damage could, in theory, fall within the scope of Article 6(6) of Directive 2014/104.

81.

However, it should be borne in mind that the concept of ‘action for damages’ is defined in Article 2(4) of Directive 2014/104 as ‘an action under national law by which a claim for damages is brought before a national court [in particular] by an alleged injured party’ and that ‘claim for damages’ is defined in Article 2(5) of that directive as a claim for compensation for harm caused by an infringement of competition law, that is to say, an infringement of Article 101 or 102 TFEU, or of national competition law, (39) excluding provisions of national law which impose criminal penalties on natural persons, unless those criminal penalties are the means of ensuring the competition rules applicable to undertakings are enforced.

82.

In that regard, in response to the Court’s request for clarification, the referring court stated that there are numerous factors suggesting that the declaration of a claim for damages as a civil party, provided for in Austrian law, should be classified as an ‘action for damages brought by an alleged injured person’ as provided for in Article 2(4) of Directive 2014/104. However, in the light of the explanations provided by that court, (40) it should be noted that, under Austrian law, the argument relied on by a civil party in the context of criminal proceedings must be linked to the criminal offence of which the person under investigation is accused. In other words, the harm which the civil party believes it has suffered must result from the unlawful conduct, from the point of view of criminal law, of which the person under investigation is accused.

83.

As I have already mentioned, (41) the referring court stated, in response to a request for clarification from the Court, that the criminal investigation proceeding at issue in the main proceedings does not involve the application of national competition law or of provisions pursuing the same objectives as Article 101 TFEU.

84.

Therefore, irrespective of the answer to the question as to whether, generally speaking, the civil component of criminal proceedings the purpose of which is to ensure that the competition rules are enforced can be classified as ‘proceedings for damages’ in accordance with Directive 2014/104, (42) the proceedings at issue in the main proceedings do not concern an infringement of competition law. The presence of a civil component in those proceedings cannot therefore permit the inference that they are proceedings for damages falling within the scope of Article 6(6) of that directive.

85.

If that lex specialis – namely Directive 2014/104 – does not apply in the main proceedings, the third question must be answered on the basis of the lex generalis – namely Directive 2019/1. Indeed, Article 31(3) of Directive 2019/1 concerns blacklisted documents in any proceeding which is not the subject of specific regulation by EU law.

(b) Directive 2019/1

86.

Article 31(3) of Directive 2019/1 permits access to blacklisted documents only to parties subject to the relevant proceedings and only for the purposes of exercising their rights of defence. A civil party, such as referred to in the first part of the third question, is not under investigation in the proceedings in which that party is submitting its civil claims. That party is therefore in no way exercising its rights of defence. Directive 2019/1 does not allow that party to obtain access to those documents.

87.

The answer to the first part of the third question must therefore be that Article 31(3) of Directive (EU) 2019/1 must be interpreted as meaning that it precludes national legislation which allows civil parties to criminal proceedings which do not concern an infringement of competition law to obtain access to blacklisted documents included by a law enforcement authority in the case file of the criminal proceedings.

88.

Article 31(3) of Directive 2019/1 establishes that access to blacklisted documents must be granted only to parties subject to the relevant proceedings and only for the purposes of exercising their rights of defence. A priori, that provision could be understood to mean that access to those documents may only be granted to parties to proceedings relating to the enforcement of competition law. Accordingly, a person under investigation in criminal proceedings which – as in the present case – is not connected with the enforcement of competition law would not therefore be able to obtain access to those documents included in a case file of criminal proceedings.

89.

However, it is necessary to ascertain whether that interpretation of Article 31(3) of Directive 2019/1 can be reconciled with the requirements for the protection of the fundamental rights of persons under investigation. In accordance with a general principle of interpretation, an EU act must be interpreted, as far as possible, in such a way as not to affect its validity and in conformity with primary law as a whole and, in particular, with the provisions of the Charter of Fundamental Rights of the European Union (‘the Charter’). (43) That provision must be interpreted in the light of that principle.

90.

In that regard, the referring court draws attention to the fact that the European Court of Human Rights (‘the ECtHR’) has laid down, in its case-law relating to Article 6(1) and (3) of the European Convention on Human Rights, signed in Rome on 4 November 1950 (‘the ECHR’), the principle that the right of access to the file extends to all evidence in the possession of the law enforcement authorities.

91.

I would point out that, in accordance with the case-law of the ECtHR, that right of access to the case file of the criminal proceedings is not absolute. The ECtHR has held that, in some cases, it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest. However, according to that court, only such measures restricting the rights of the defence as are strictly necessary are permissible under the ECHR. In addition, the non-disclosure of such evidence must be sufficiently counterbalanced by adequate procedural safeguards. (44) That being said, the ECtHR appears to consider that the nature of the documents concerned cannot constitute grounds for their non-disclosure. By contrast, it considers that the content of those documents must be examined in order to balance the important public interest in not disclosing them against the rights of defence of the person concerned. (45)

92.

With regard to EU law, Article 52(3) of the Charter provides that, in so far as the rights in the Charter correspond to rights guaranteed by the ECHR, the meaning and scope of those rights must be the same as those laid down by the ECHR. In addition, according to the explanations relating to Article 47 and Article 48(2) of the Charter – which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, must be taken into consideration for the interpretation of the ECHR – those provisions correspond to Article 6(1) and Article 6(2) and (3) ECHR respectively. (46)

93.

Furthermore, Directive 2012/13/EU (47) is intended to establish common minimum rules on the protection of the procedural rights and guarantees arising from the relevant provisions of the Charter and the ECHR. (48) Those rules concern the right for suspects or accused persons to be informed of their rights in criminal proceedings and of the accusation made against them as soon as a person has been informed by the competent authorities that he or she is suspected or accused of having committed a criminal offence. (49)

94.

Following the case-law of the ECtHR, Article 7(2) of Directive 2012/13 establishes that access must be granted at least to all material evidence in the possession of the competent authorities, whether for or against suspects or accused persons, in order to safeguard the fairness of the proceedings and to prepare the defence. (50) By way of derogation from that right, Article 7(4) of that directive establishes that access to certain materials may be refused, in particular if such refusal is strictly necessary to safeguard an important public interest. That provision also states that ‘Member States shall ensure that, in accordance with procedures in national law, a decision to refuse access to certain materials in accordance with this paragraph is taken by a judicial authority or is at least subject to judicial review’. (51)

95.

The question is therefore whether the non-disclosure of blacklisted documents to the persons under investigation can be justified by an important public interest connected with the enforcement of competition law.

96.

In that regard, it should be noted that the protection of blacklisted documents pursues two intrinsically linked objectives. The first is to protect the persons concerned against the risks associated with the disclosure of self-incriminating documents. The second is to ensure that access to such documents does not adversely affect public interests, such as the effectiveness of the policy of preventing infringements of competition law, in so far as generalised access could deter parties involved in infringements of Articles 101 and 102 TFEU from cooperating with the NCAs. (52) It could therefore be argued that a public interest can justify the non-disclosure of blacklisted documents in criminal proceedings.

97.

However, as follows from the case-law of the ECtHR, (53) which is transposable to Article 48(2) of the Charter, (54) and from Article 7(4) of Directive 2012/13, (55) it cannot be considered that certain documents, given their nature, must automatically be withheld. The question of refusing access to such documents must be examined on a case-by-case basis.

98.

Accordingly, first, the reference to the ‘parties subject to the relevant proceedings’ to whom access to blacklisted documents may be granted, in accordance with Article 31(3) of Directive 2019/1, must cover any suspect and any accused person in criminal proceedings in order to satisfy the requirements for protection of fundamental rights. Second, access to those documents may be refused provided that the requirements laid down in Directive 2012/13 are met.

99.

Lastly, one might well ask how that interpretation of Article 31(3) of Directive 2019/1 is to be reconciled with Article 31(4) of that directive. Article 31(4) lays down limits on the use of information obtained by accessing an NCA’s file of the enforcement proceedings. That provision refers to competition law enforcement proceedings. Unlike the interpretation of Article 31(3) of Directive 2019/1 which I have just proposed – whereby access to blacklisted documents can also be granted to persons involved in criminal proceedings – Article 31(4) of that directive suggests that persons involved in proceedings which are not related to the enforcement of competition law cannot use information taken from blacklisted documents in order to exercise their rights of defence.

However, in my view, Article 31(3) of Directive 2019/1 concerns a different situation from that referred to in Article 31(4) of that directive. Indeed, the former provision concerns access to blacklisted documents contained in the file for the proceedings concerned, granted for the purposes of the exercise of the rights of defence by the parties to those proceedings. The right to use those documents to exercise the rights of the defence in such proceedings already follows from Article 31(3) of Directive 2019/1. By contrast, Article 31(4) of that directive concerns the use of information obtained from blacklisted documents in proceedings other than those proceedings in which access has been granted. That provision states that that information may be used ‘in cases that are directly related to the case for which access has been granted’.

The answer to the second part of the third question referred is therefore that Article 31(3) of Directive 2019/1 must be interpreted as meaning that it does not preclude national legislation which allows persons under investigation in criminal proceedings which do not concern an infringement of competition law, other than the authors of blacklisted documents, to obtain access to those documents included by a law enforcement authority in the case file of the criminal proceedings.

The second question referred for a preliminary ruling seeks, in essence, to clarify whether the protection afforded by that directive to blacklisted documents also covers documents produced by their author before an NCA in order to explain, specify in detail and prove their content.

In order to answer that question, I will first present my remarks on the definitions of ‘leniency statement’ and ‘settlement submission’ used in Directive 2014/104 and Directive 2019/1. I will then review whether those concepts also cover the blacklisted documents referred to in the second question.

1. The blacklisted documents

Article 2(16) of Directive 2014/104 defines the concept of ‘leniency statement’ as ‘an oral or written presentation voluntarily provided by, or on behalf of, an undertaking or a natural person to a[n NCA] or a record thereof, describing the knowledge of that undertaking or natural person of a cartel and describing its role therein, which presentation was drawn up specifically for submission to the [NCA] with a view to obtaining immunity or a reduction of fines under a leniency programme, not including pre-existing information’. Furthermore, Article 2(17) of that directive defines the concept of ‘pre-existing information’ as ‘evidence that exists irrespective of the proceedings of a[n NCA], whether or not such information is in the file of a[n NCA]’.

Article 2(18) of Directive 2014/104 defines the concept of ‘settlement submission’ as a ‘voluntary presentation by, or on behalf of, an undertaking to a[n NCA] describing the undertaking’s acknowledgement of, or its renunciation to dispute, its participation in an infringement of competition law and its responsibility for that infringement of competition law, which was drawn up specifically to enable the [NCA] to apply a simplified or expedited procedure’.

Those definitions of ‘leniency statement’ and ‘settlement submission’ are included in points 17 and 18 of Article 2(1) of Directive 2019/1.

The referring court has indicated that the public prosecutor’s office has also included the annexes to the blacklisted documents in the case file of the criminal proceedings. In addition, the passage in the order for reference relating to the presentation of the arguments of the applicants in the main proceedings suggests that the second question concerns, in particular, ‘evidence … established by leniency applicants [in] the course of or for the purposes of the administrative competition proceedings, such as internal investigation reports [drawn up at the request of the Federal Competition Authority] and lists and minutes drawn up for [that authority]’.

By its second question, the referring court therefore appears to be asking whether the protection provided for in Article 31(3) of Directive 2019/1 also covers documents specifically prepared for the purposes of proceedings brought by an NCA, which are submitted spontaneously or at the request of that authority, which do not fall within the definitions of ‘leniency statement’ and ‘settlement submission’. I am satisfied that that question must be answered in the negative.

In the first place, under Directive 2014/104 and Directive 2019/1, ‘information that was prepared by a natural or legal person specifically for the proceedings of a[n NCA]’, including ‘[information presented as] replies to requests for information of the [NCA] or witness statements’, does not enjoy the same protection as is afforded to blacklisted documents. The restrictions on access to and use of that information are less strict than those for blacklisted documents. In fact, such information can be used after the [NCA] has closed its proceedings.

In the second place, recital 26 of Directive 2014/104 states, in particular, that in order to ensure that undertakings continue to be willing to approach NCAs voluntarily with blacklisted documents, the protection afforded to such documents ‘should also apply to verbatim quotations from [blacklisted documents] included in other documents’. That solution seems to be based on the judgment in Evonik Degussa v Commission, in which the Court clarified that a high level of protection must be afforded not to verbatim quotations of information from the documents provided by an undertaking to the Commission in support of a statement made in order to obtain leniency, but rather to verbatim quotations from that statement itself.

In the third place, the concepts of ‘leniency statement’ and ‘settlement submission’ ought not to be interpreted broadly. Indeed, as I have noted above, EU law is based on the principle that the protection of blacklisted documents should not unduly interfere with the right of injured parties to compensation and must be limited to spontaneous, self-incriminating leniency statements and settlement submissions.

In view of the above, any document specifically prepared for the purposes of proceedings initiated by an NCA, whether submitted spontaneously or at the request of that authority, can not be treated in the same way as blacklisted documents.

It is appropriate to take the view that the protection afforded by Directive 2019/1 to blacklisted documents covers, first, a description of a cartel and a leniency applicant’s role in that cartel which is produced spontaneously and specifically to obtain immunity from fines or a reduction of fines under a leniency programme and, second, a declaration acknowledging or renouncing to dispute participation in and responsibility for an infringement of competition law, which is produced spontaneously and specifically to enable the NCA to apply a simplified or expedited procedure. However, that protection does not extend to other documents specifically prepared for the purposes of proceedings initiated by an NCA, submitted spontaneously or at the request of that authority.

Finally, in view of my proposed answers to the second and third questions referred, I would like to clarify the provisional answer which I propose to give to the first question. EU competition law – and in particular Directive 2014/104 and Directive 2019/1 – does not govern the question as to whether blacklisted documents may be included by a law enforcement authority in the case file in criminal proceedings and serve as a basis for further investigations. Article 101 TFEU must be interpreted as meaning that it does not preclude those documents from being included by a law enforcement authority in the file in the context of criminal proceedings and being used as the basis for further investigations, provided that the requirements relating to their protection vis-à-vis individuals laid down by those directives are complied with.

In the light of all of the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Higher Regional Court, Vienna (Austria) as follows:

(1) EU competition law, and in particular Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union and Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market, does not govern the question whether leniency statements and settlement submissions may be included by a law enforcement authority in the case file in the context of criminal proceedings and be used as a basis for further investigations. Article 101 TFEU must be interpreted as meaning that it does not preclude such documents from being included by a law enforcement authority in the case file in the context of criminal proceedings and being used as the basis for further investigations, provided that the requirements relating to their protection vis-à-vis individuals laid down by those directives are complied with.

(2) Article 31(3) of Directive 2019/1 must be interpreted as meaning that:

it precludes national legislation which allows civil parties to criminal proceedings which do not concern an infringement of competition law to obtain access to such documents, included by a law enforcement authority in the case file of the criminal proceedings,

it does not preclude national legislation which allows persons under investigation in such criminal proceedings, other than the authors of leniency statements and settlement submissions, to obtain access to those documents included by a law enforcement authority in the case file of the criminal proceedings.

(3) The protection afforded by Directive 2019/1 to leniency statements and settlement submissions does not extend to other documents specifically prepared for the purposes of proceedings initiated by a competition authority, submitted spontaneously or at the request of that authority.

1

Original language: French.

See, with regard to access to an NCA file by injured parties, Cauffman, C., ‘The Interaction of Leniency Programmes and Actions for Damages’, The Competition Law Review, vol. 7, No 2, 2011, p. 200 to 203.

3

See judgments of 14 June 2011, Pfleiderer (C‑360/09, EU:C:2011:389, paragraphs 20 to 24), and of 6 June 2013, Donau Chemie and Others (C‑536/11, EU:C:2013:366).

Directive of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (OJ 2014 L 349, p. 1).

5

Directive of the European Parliament and of the Council of 11 December 2018 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market (OJ 2019 L 11, p. 3).

6

See, with reference to Directive 2014/104, Massa, C., ‘The Disclosure of Leniency Statements and Other Evidence under Directive 2014/104/EU: An Undue Prominence of Public Enforcement?’, Market and Competition Law Review, vol. 2, No 1, 2018, pp. 161 and 162.

7

See Article 6(5)(c) of Directive 2014/104 and Article 31(5)(c) of Directive 2019/1.

8

See point 18 of the present Opinion.

9

See Article 6(8) of Directive 2014/104.

10

Emphasis added.

11

See, to that effect, judgment of 20 April 2023, Repsol Comercial de Productos Petrolíferos (C‑25/21, EU:C:2023:298, paragraph 31).

12

See, in particular, Article 6(10) of Directive 2014/104, which states that ‘Member States shall ensure that national courts request the disclosure from a[n NCA] of evidence included in its file only where no party or third party is reasonably able to provide that evidence.’ Emphasis added.

13

See Article 6(6) of Directive 2014/104.

14

See Article 7(1) of Directive 2014/104.

15

See recital 72 of Directive 2019/1.

16

See Article 16a(2) of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (OJ 2004 L 123, p. 18), as amended by Commission Regulation (EU) 2015/1348 of 3 August 2015 (OJ 2015 L 208, p. 3).

17

See Commission Staff Working Document, Impact Assessment, Accompanying the document Proposal for a Directive of the European Parliament and of the Council to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market, Brussels, 22 March 2017, SWD(2017) 114 final, https://eur-lex.europa.eu/resource.html?uri=cellar:8c6800cb-0fb6-11e7-8a35-01aa75ed71a1.0001.02/DOC_1&format=PDF, p. 65.

18

Recital 4 of Directive 2019/1 states, in particular, that the extension of the scope of that directive to cover national competition law applied on a stand-alone basis concerns the protection of blacklisted documents.

19

See Proposal for a Directive of the European Parliament and of the Council to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market (COM(2017) 142 final), p. 7.

See, to that effect, Kowalik-Bańczyk, K., ‘Challenges of Decentralisation of Competition Law Enforcement: A Retrospective Overview in Case Law’, in Claici, A., Komninos, A. and Waelbroeck, D., (eds), The Transformation of EU Competition Law: Next Generation Issues, Wolters Kluwer, Alphen-sur-le-Rhin, 2023, p. 100, and Rizzuto, F., ‘The ECN plus Directive: The Harmonization of National Procedural Rules Governing the Parallel Enforcement of European Union Competition Law in the Internal Market’, European Competition Law Review, vol. 40, No 12, 2019, p. 575.

21

Arsenidou, E., Capiau, J., Sinclair, A. and Stanciute, J., ‘Cooperation Within the ECN and Strengthening of National Competition Authorities’, in Rousseva, E., (ed.), EU Antitrust Procedure, Oxford University Press, Oxford, 2020, p. 710. See, to that effect, Botta, M., ‘The Draft Directive on the Powers of National Competition Authorities: The Glass Half Empty and Half Full’, European Competition Law Review, vol. 38, No 10, 2017, p. 474.

22

See point 52 of the present Opinion.

23

See point 53 of the present Opinion.

Commission Notice on the rules for access to the Commission file in cases pursuant to Articles 81 and 82 of the EC Treaty, Articles 53, 54 and 57 of the EEA Agreement and Council Regulation (EC) No 139/2004, (OJ 2005 C 325, p. 7), paragraphs 2, 3 and 15. That notice distinguishes between ‘access to the file’ and ‘correspondence with other public authorities’.

25

See point 50 of the present Opinion.

26

Council Regulation of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).

27

On cooperation between the Commission and the NCAs of the Member States, based on Article 4(3) TEU, see Dudzik, S., Współpraca Komisji Europejskiej z organami ochrony konkurencji w sprawach kontroli koncentracji przedsiębiorstw, Wolters Kluwer, Warsaw, 2010, p. 632.

28

See, to that effect, judgment of 27 April 2017, FSL and Others v Commission (C‑469/15 P, EU:C:2017:308, paragraph 34).

29

See point 47 of the present Opinion.

30

See point 61 of the present Opinion.

31

See, to that effect, judgment of 13 March 2008, Doulamis (C‑446/05, EU:C:2008:157, paragraph 19).

32

See point 62 of the present Opinion.

33

See point 70 of the present Opinion.

34

See point 43 of the present Opinion.

35

See point 56 of the present Opinion.

36

See point 73 of the present Opinion.

37

See point 43 of the present Opinion.

38

See judgment of 21 April 1993, Sonntag (C‑172/91, EU:C:1993:144, paragraphs 14 to 16).

39

See Article 2(1) of Directive 2014/104.

40

In that regard, the referring court also stated that a civil party must declare that he or she wishes to participate in the criminal proceedings in order to be compensated for the loss suffered and that it is sufficient for that party to rely conclusively on there being a right ‘having its origin in the criminal penalty’. The decision on the civil party’s arguments follows the decision on the guilt of the person under investigation.

41

See point 65 of the present Opinion.

42

See point 80 of the present Opinion.

43

See judgment of 16 November 2023, Ligue des droits humains (Verification by the supervisory authority of data processing) (C‑333/22, EU:C:2023:874, paragraph 57).

44

ECtHR, 24 June 2003, Dowsett v. United Kingdom (CE:ECHR:2003:0624JUD003948298, § 41 and 42), ECtHR, 31 March 2009, Natunen v. Finland, Application No 21022/04 (CE:ECHR:2009:0331JUD002102204, § 40), and ECtHR, 11 December 2008, Mirilachvili v. Russia (CE:ECHR:2008:1211JUD000629304, § 203 to 209).

45

ECtHR, 11 December 2008, Mirilachvili v. Russia (CE:ECHR:2008:1211JUD000629304, § 206).

46

See, recently, judgment of 1 August 2022, TL (Absence of an interpreter and of translation) (C‑242/22 PPU, EU:C:2022:611, paragraph 39).

47

Directive of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings (OJ 2012 L 142, p. 1).

48

See, recently, judgment of 1 August 2022, TL (Absence of an interpreter and of translation) (C‑242/22 PPU, EU:C:2022:611, paragraph 40).

49

See, to that effect, order of 6 September 2022, Delgaz Grid (C‑95/22, EU:C:2022:697, paragraph 25).

50

See Article 7(2) of Directive 2012/13.

51

See Article 7(4) of Directive 2012/13.

52

See judgment of 6 June 2013, Donau Chemie and Others (C‑536/11, EU:C:2013:366, paragraph 33). See also my Opinion in Evonik Degussa v Commission (C‑162/15 P, EU:C:2016:587, paragraph 119).

53

See point 90 of the present Opinion.

54

See point 92 of the present Opinion.

55

See point 94 of the present Opinion.

56

Emphasis added.

57

Emphasis added.

58

See point 35 of the present Opinion.

59

See recital 25 of Directive 2014/104, which states, in particular, that information that was prepared by an NCA in the course of its proceedings for the enforcement of Union or national competition law and sent to the parties to those proceedings, such as a ‘Statement of Objections’, or prepared by a party thereto, such as replies to requests for information of the NCA or witness statements, should therefore be disclosable in actions for damages only after the NCA has closed its proceedings.

60

See judgment of 12 January 2023, RegioJet (C‑57/21, EU:C:2023:6, paragraph 116).

61

See Article 6(5) and Article 7(2) of Directive 2014/104, and Article 31(5) of Directive 2019/1.

62

Judgment of 14 March 2017 (C‑162/15 P, EU:C:2017:205, paragraph 87).

63

See point 37 of the present Opinion.