The non-disclosure rules in EU Directive 2014/104/EU. An unsuccessful attempt to protect the EU Leniency Programme

Thèse de Master , 2015 , 47 Pages , Note: 73 %, Distinction

Droit - Droit civil / Droit commercial, Droit des sociétés, Droit des cartels, Droit des affaires

The European Union recently enacted Directive 2014/104/EU 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” (Damages Directive). One of the main purposes of this directive is to balance private and public competition law enforcement, particularly to solve the tension between the Commission’s leniency programme and private enforcement. The tension between these two institutions is caused by the fact that potential leniency applicants might be discouraged from applying for the programme if the danger exists that they could find themselves in a worse position than non-applicants in relation to potential damage actions against them. It can be noted that there are generally two ways of solving this tension: (1) to prevent disclosure of leniency material from potential damage claims and (2) to reduce the amount of damages successful leniency applicants have to pay. The EU legislator decided to combine both methods and implemented three provisions to protect the leniency programme. These are the Articles 6 (6) (a), 7 (1), which take the first way, and 11 (4), which limits the damages successful applicants have to pay to the ones suffered by direct or indirect customers and cartel victims which could not obtain damages from other cartelists. Additionally a new Art 16a (2) was very recently (3 August 2015) implemented into Regulation 773/2004 in order to prevent leniency documents in possession of the Commission from being disclosed. In this essay however, I will focus mainly on the non-disclosure rule of Art 6 (6) (a) Regulation 2014/104/EU since this provision does seem to be most controversial. Nevertheless it cannot be analysed without taking into account the other provisions. [...]

Inhaltsverzeichnis (Table of Contents)

• The need to protect the leniency programme
• The weighing exercise created in Pfleiderer
• The need for certainty and cost effectiveness
• The non-disclosure rule
• The non-disclosure rule in practice
• The non-disclosure rule from a competition policy perspective
• The non-disclosure rule and its loopholes
• A better way to protect the leniency programme
• Reducing damages
• The advantages of this approach
• Conclusion

Zielsetzung und Themenschwerpunkte (Objectives and Key Themes)

This essay aims to analyze the non-disclosure rule in EU Directive 2014/104/EU, which aims to protect the EU Leniency Programme from the negative effects of private enforcement. The essay argues that the non-disclosure rule is not the most effective way to achieve this goal and proposes an alternative approach.

• The tension between public and private enforcement of competition law
• The role of the EU Leniency Programme in competition law enforcement
• The impact of ECJ case law on the balance between leniency and private enforcement
• The effectiveness of non-disclosure rules in protecting leniency applicants
• Alternative approaches to balancing leniency and private enforcement

Zusammenfassung der Kapitel (Chapter Summaries)

This section will provide summaries of the chapters, focusing on their main themes, arguments, or narrative elements.

• The need to protect the leniency programme: This chapter discusses the need to protect the EU Leniency Programme from the negative effects of private enforcement. It highlights the uncertainty created by the ECJ's decisions in Pfleiderer and Donau Chemie, which did not provide full protection to either claimants' rights or the leniency programme.
• The non-disclosure rule: This chapter analyzes the non-disclosure rule in EU Directive 2014/104/EU, which aims to protect leniency applicants from being forced to disclose information in private damage claims. It examines the rule's practical application, its compatibility with competition policy goals, and its potential loopholes.
• A better way to protect the leniency programme: This chapter proposes an alternative approach to protecting the leniency programme, arguing that reducing the damages that immunity recipients have to pay is a more effective and efficient solution. It discusses the advantages of this approach compared to the non-disclosure rule.

Schlüsselwörter (Keywords)

The main keywords and focus topics of this essay include: EU Directive 2014/104/EU, Leniency Programme, private enforcement, non-disclosure rule, competition law, ECJ case law, Pfleiderer, Donau Chemie, damage claims, immunity recipients, balancing public and private enforcement.

• Université: University College London
• Cours: Master of Laws
• Note: 73 %, Distinction
• Auteur: Daniel Schlichting (Auteur)
• Année de publication: 2015
• Pages: 47
• N° de catalogue: V313745
• ISBN (ebook): 9783668125865
• ISBN (Livre): 9783668125872
• Langue: anglais
• mots-clé: directive, leniency, programme