Case C-536/11

Bundeswettbewerbsbehörde

v

Donau Chemie AG and Others

(Request for a preliminary ruling from the Oberlandesgericht Wien)

‛Competition — Access to the file — Judicial proceedings relating to fines for infringement of Article 101 TFEU — Third-party undertakings wishing to bring an action for damages — National rules making access to the file subject to the consent of all parties to the proceedings — Principle of effectiveness’

Summary — Judgment of the Court (First Chamber), 6 June 2013

1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Jurisdiction of the national court — Necessity of a question referred and relevance of the questions raised — Assessment by the national court

   (Art. 267 TFEU)

2. Agreements, decisions and concerted practices — Prohibition — Direct effect — Right of individuals to claim for damages for losses suffered — Detailed procedural rules — Application of national law — Conditions — Observance of the principle of equivalence in the detailed procedural rules for the exercise of a right conferred by EU law or those governing a right conferred by the domestic legal system — Observance of the principle of effectiveness of EU law

   (Art. 101(1) TFEU)

3. Agreements, decisions and concerted practices — Adverse effect on competition — Access for persons who have been adversely affected by a cartel to forming part of the file relating to national proceedings concerning the application of Article 101 TFEU — Application of national law — Conditions — Observance of the principle of effectiveness — Obligation to weigh up the interests involved

   (Art. 101(1) TFEU; Council Regulation No 1/2003)

1.  See the text of the decision.

   (see paras 15, 16)

2.  See the text of the decision.

   (see paras 20-27)

3.  EU law, in particular the principle of effectiveness, precludes a provision of national law under which access to documents forming part of the file relating to national proceedings concerning the application of Article 101 TFEU, including access to documents made available under a leniency programme, by third parties who are not party to those proceedings with a view to bringing an action for damages against participants in an agreement or concerted practice is made subject solely to the consent of all the parties to those proceedings, without leaving any possibility for the national courts of weighing up the interests involved.

   In exercising their powers for the purpose of applying national rules on the right of access by persons believing themselves to be adversely affected by a cartel to documents relating to national proceedings concerning that cartel, the national courts must be able, on a case-by-case basis, to weigh up the interest of the requesting party in obtaining access to those documents in order to prepare its action for damages, in particular in the light of other possibilities it may have, and the actual harmful consequences which may result from such access having regard to public interests or the legitimate interests of other parties, including the public interest relating to the effectiveness of leniency programmes.

   (see paras 30, 34, 44-46, 49, operative part)