Access Through The Back-Door? On Access to Leniency Applications and Other Information Related to Former Cartel Members

Associate Jens Steger wrote an article about the latest developments in the field of antitrust private enforcement in Germany, published in the prominent German legal magazine Betriebs-Berater. Jens discusses the latest decision of the Higher Regional Court Hamm, which confirmed a decision of the District Attorney to provide a civil court with access to investigation files of the District Attorney that contain the leniency applications and related information of former cartel members regarding leniency applications filed with the German Bundeskartellamt (Federal Cartel Office) as well as the European Commission. The decision was issued during a multi-million private-enforcement action filed by the concerned cartel victims against the former cartel members before the same civil court. The decision of the Higher Regional Court Hamm has been confirmed by the German Federal Constitutional Court under all aspects of German constitutional law. While one cannot rely on the confidentiality promises of the Bundeskartellamt, companies should consider these developments very carefully, as they indicate a growing possibility that plaintiffs may be able to file successful legal claims against (former) cartel members.