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Title: Access to competition authorities' files in private antitrust litigation
Authors: Peyer, Sebastian
First Published: 20-Jan-2015
Publisher: Oxford University Press (OUP)
Citation: Journal of Antitrust Enforcement (2015)
Abstract: The growth of private antitrust litigation in the courts of the Member States creates tensions between claimants and competition authorities. Claimants seek access to confidential records held by the authorities while the competition authorities try to maintain the confidentiality of those files. This paper analyses the two main access routes to confidential information in the files of competition authorities in the EU. It first looks at access under Regulation 1049/2001 (Transparency Regulation).  Then, the paper assesses the framework for disclosure in the national courts, analysing the Court of Justice’s Pfleiderer and Donau Chemie decisions, its application in England and Germany, and the changes that are required with the adoption of the Damages Directive. This author finds that both access routes tend to favour the protection of authority files and that access‐ seeking parties face high legal thresholds for the disclosure of files and leniency documents. I will argue that the raised standard for access demonstrates a policy change regarding private antitrust enforcement. EU policy makers and the courts have begun to moderate the principle of effective redress as expressed in Courage and Manfredi. In order to minimise repercussions for public enforcement they reduce the incentives for claimants to bring follow‐on damages actions.
DOI Link: 10.1093/jaenfo/jnu012
ISSN: 2050-0688
eISSN: 2050-0696
Version: Post-print
Status: Peer-reviewed
Type: Journal Article
Rights: Archived with reference to SHERPA/RoMEO and publisher website. © The Author 2015. Published by Oxford University Press. All rights reserved. This is a pre-copyedited, author-produced PDF of an article accepted for publication in Journal of Antitrust Enforcement following peer review. The version of record Journal of Antitrust Enforcement (2015) is available online at:
Appears in Collections:Published Articles, School of Law

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