Private Enforcement of Competition Law: Follow-on Damages Claims and Access to Leniency Documents — A Swiss Perspective

As a Follow-on Damages Claim Culture seems to be on the rise in the EU, it is important to establish clear rules regulating access to evidence contained within the file of a Competition Authority. The new Cartel Damages Directive provides for a strict rule excluding any sort of disclosure of leniency corporate statements within the file of a National Competition Authority in order to assure the enforcement goal of full effectiveness of EU law, i.e. deterrence. Despite this clear cut rule, there remain doubts as to how far this provision is in line with the case law of the European Court of Justice. The Court, until now, seems to favour a case-by-case assessment so as to ensure the enforcement goal of the right to effective judicial protection i.e. compensation.

To address this conflict, a two-stage analysis will be conducted: In a first stage, the goals of the enforcement system have to be determined. In a second stage, it has to be examined whether the instruments provided for by the enforcement system e.g. the access rights, correspond in a satisfactory manner with said goals.

In Switzerland, as recent legislative motions have shown, there seems to be a general consensus that private damages claims, especially in Follow-on proceedings, should be facilitated. Therefore, it will be argued that when deciding on how to tailor access rights, a similar analysis should be conducted, in order to strike the right balance between the different enforcement goals.

A sandwich lunch will be available from 12.30. The meeting will begin at 1pm.