Access and Cartel Cases

Ensuring Effective Competition Law Enforcement

Helene Andersson

• Publisher: Hart Publishing
• Year: 2021
• ISBN:
  9781509942497
• Edition: 1
• Topic: Law
• Subtopic: Antitrust
• Index: Law

This book examines the legislative patchwork surrounding access to the European Commission's cartel case files. Recent legislative changes have increased the value of the files and have also highlighted the inherent tension between a number of competing interests affecting their accessibility. The Commission is undoubtedly caught between a rock and a hard place, charged with the task to ensure due process, transparency and effectiveness while at the same time promoting both public and private enforcement of the EU competition rules. The author considers how best to ensure a proper balance between the legitimate, but often diverging interests of parties, third parties and national competition authorities in these cases. The book provides a unique and comprehensive presentation of the EU legislation and case law surrounding access to the Commission's cartel case files. The author examines the question of accessibility from three different perspectives: that of the parties under investigation, cartel victims, and national competition authorities. The author also considers the EU leniency system and whether any legislative changes could make the attractiveness of the system less dependent on the possibilities of cartel victims to access the evidence contained in the Commission's case files.

PART I

The Legislative Framework

1

The Rules Governing Access

Transparency, integrity, and accountability are the essential prerequisites of a democracy based on the rule of law. They promote good governance and build trust in the policy-making process, thereby enhancing the legitimacy and credibility of public institutions.¹

The Commission’s cartel case files are beginning to take on the value of the One Ring in The Lord of the Rings. However, unlike in the epic novel by JRR Tolkien, cases concerning access to the Commission’s cartel files do not necessarily depict a fight between good and evil forces. Although cartel activity is sometimes referred to as a form of theft, few would go as far as to liken a company suspected of cartel participation to Dark Lord Sauron, and both the companies targeted by the Commission’s cartel investigations and third parties may have a legitimate interest in accessing the file or in keeping it out of reach of others. This chapter outlines and presents the rules that may come into play when access is sought from the Commission’s file by someone other than the parties under investigation, be it by a third party or an NCA. The rules on party access are presented in chapter 2 on EU fundamental rights protection. While the present chapter aims at providing a general overview of the rules that may be invoked to seek access from the Commission’s case files, chapters 3–7 will provide more detailed descriptions and analyses of each set of rules.

I.Public Access to Documents Held by the EU Institutions

The Treaty on the European Union opens with a bold statement, declaring that it marks a new stage in the process of creating an ever-closer union among the peoples of Europe, in which decisions are taken as openly as possible and as close to the citizen as possible.² The principle of transparency is thus established already in the opening paragraph of the TEU, suggesting that it is of fundamental importance to the EU and its legal system. Indeed, and as noted by Buijze, the principle is thought not only to contribute to good governance, but also to be essential to the legitimacy of the EU, and as such it is of fundamental value.³ The goals envisioned in Article 1 of the TEU are confirmed by Article 15(1) TFEU, which declares that ‘In order to promote good governance and ensure the participation of civil society, the Union institutions, bodies, offices and agencies shall conduct their work as openly as possible.’ The wording suggests that the principle of transparency does not reflect an individual right but is rather considered as a means of safeguarding democracy and ensuring an administration that works effectively. However, this is only part of the truth. The principle of transparency is a composite term and serves to protect a number of interests. As Buijze notes, it has also been derived from the principle of effective judicial protection and the rights of the defence, and has been used in conjunction with the principles of legal certainty and sound administration. In those cases, transparency is essential to safeguard individual rights of all sorts.⁴ In addition, the right of access to documents has been written into the Charter, and is thus considered a fundamental right in and of itself. As such, it belongs to the individual. Transparency can thus be a means of safeguarding the public interests of democracy and legitimacy, but also to protect individual rights. The following section provides a brief presentation of how the principle of transparency and the rules on public access to documents have emerged and developed in the EU legal order.

A.Historic Background to the Principle of Transparency and the Right of Public Access

As noted by Lenaerts, the Founding Treaties were silent on issues concerning democratic legitimacy, and the early days of the European cooperation were weak in terms of democracy, accountability and accessibility to public scrutiny. Over time, the absence of any reference to the concept of democracy led some scholars to argue that the Community suffered from a ‘democratic deficit’.⁵ However, while the concept has its roots in the 1970s, it was two decades later that the debate on the perceived democratic deficit really gathered speed.⁶ Without analysing the debate in detail, the criticism mainly consisted in a concern that the EU suffered from a lack of accountability, democracy and accessibility of the ordinary EU citizens to the EU institutions. The debate was fuelled by a number of events that took place at both Member State and institutional level during the 1990s.

The first of these events concerned European integration and the public reception of the Maastricht Treaty, which had been agreed by the Member State governments in 1991. As noted by Føllesdal, European governments had long pursued European integration, assuming that the public gave them a ‘permissive consensus’ toward deeper cooperation.⁷ The popular and legal reception of the Maastricht Treaty challenged this assumption. Referendums on the Treaty were held in Denmark, France and Ireland, and the results of these referendums sent shock waves across the Union and led to a heated public debate on the proper ends and institutions of the EU. In Denmark, the Danish people voted against the treaty in 1992. After the defeat in the first referendum, Denmark negotiated and received an opt-out from the single currency, and the Maastricht Treaty was accepted by another referendum the following year. In France the treaty created serious cleavages within political parties, and barely passed in a referendum 51 to 49 per cent, prompting Mitterand to suggest that a long-term oversight of the EU institutions lay in the lack of talking to the people.⁸ In the UK, the treaty was passed only with great difficulty in 1993.

Second, when allegations of corruption forced the Commissioners to resign in March 1999, this added fuel to an already heated debate. In the media, the EU was described as having been decapitated:

Europe was left decapitated last night as the entire European Commission resigned en masse after a devastating report by an independent committee of inquiry which found that they had ‘lost control of the administration’.⁹

Tomkins provides an illustrative presentation of the events leading up to this ‘decapitation’. In 1998, the Commission’s own anti-fraud unit, known as UCLAF,¹⁰ disclosed that £600 million of the Commission’s humanitarian aid budget for the years 1993 through 1995 could not be accounted for. According to UCLAF, this had not come to light previously because the Commission had failed to keep the European Court of Auditors (ECA) properly informed. Furthermore, Tomkins notes, in its report for the financial year 1997, published in November 1998, the ECA stated that approximately £3 billion (representing 5 per cent of the EU’s budget) had ‘gone walkabout’. This included some £600 million that had been allotted to repairing and making safe the nuclear power plants of the old Soviet bloc. This money, the ECA declared, had been ‘either wasted, lost, embezzled or unspent’. There were also allegations that Commission officials had attempted to suppress any investigations into fraud, and that some of them were in the habit of awarding lucrative contracts to family members.¹¹ These events were closely monitored by the media, which no doubt added fuel to any criticism of the EU machinery.

Third, in 2001, it was Ireland’s turn to vote against a treaty proposal. In a referendum on the adoption of the Treaty of Nice, the Irish voters said no, and it was only after the negotiation of a number of amendments that the treaty was approved by the Irish people in October 2002.

These developments sparked a number of actions at EU level. In response to the bitter criticism following the Danish referendum, where the EU institutions were accused of ‘institutional autism’, the Council and the Commission produced non-binding codes of conduct on public access to documents, and in 1995, the first European Ombudsman was appointed. The Ombudsman was entrusted with the task of ensuring accountability and empowered to investigate complaints of maladministration against the EU institutions. Furthermore, the right of access to documents and openness in decision-making were both formally introduced by the Treaty of Amsterdam.¹² As to the ‘principle of openness’, the treaty modified Article 1 TEU so as to make clear that the EU institutions are bound to take their decisions ‘as openly as possible’.¹³

Another response to the perceived democratic deficit and lack of accountability was the Commission’s own White Paper on European governance presented in 2001,¹⁴ in which it proposed a number of measures aimed at regaining the citizens’ confidence in the EU and its institutions. The White Paper declared that it was now time to take action and that the Union should – already within the existing treaties – start adapting its institutions and establishing more coherence in its policies so that it would become easier to see what the Union was doing and what it stood for. A more coherent Union would be stronger at home and a better leader in the world, the Commission declared. It further acknowledged that many Europeans felt alienated from the Union’s work. According to the Commission, this feeling of alienation reflected particular tensions and uncertainty about what the Union was and what it aspired to become, about its geographical boundaries, its political objectives and the way these powers were shared with the Member States. Reforming governance addressed the question of how the EU used the powers given by its citizens, and the goal was thus to open up policy-making to make it more inclusive and accountable. A better use of powers should connect the EU more closely to its citizens and lead to more effective policies, the White Paper declared. The White Paper thus stressed the importance of inclusion, participation, and a deeper knowledge among the citizens about the EU and its goals.

At European level, the principle of transparency and the rules on public access were developed as a response to a perceived democratic deficit, where the EU administration was considered alienated from the EU citizens and where the people of Europe not only felt distant from the power, but also lacked trust in the EU institutions. The rules on public access should bring the EU closer to the citizens and ensure accountability. The efforts to implement the principle of transparency within the EU legal order had been done in two ways, first by granting citizens a right of access to documents and second by shedding some light on the traditionally opaque EU decision-making process.¹⁵ As will be discussed further in chapter 2, the principle of transparency is applied not only to bring EU citizens closer to the decision-making process. The right of access to documents is now also a fundamental right protected by the Charter, and the principle of transparency operates as a prerequisite to the effective exercise of the rights of defence in administrati...