CONFERENCES: EU DAMAGES DIRECTIVE - IMPLEMENTATION - NCA - DISCLOSURE OF EVIDENCE

Disclosure of evidence included in the file of a competition authority (Implementation of the EU Damages Directive into Member State law - Würzburg, May 5, 2017)

The disclosure provisions of the EU Damages Directive allow national courts to order competition authorities to disclose certain documents and information in damages proceedings. In addition, private parties can also be ordered to disclose certain evidence that they have obtained through access to the files of a competition authority. Leniency applications as well as settlement submissions and certain other documents are, however, excluded from disclosure. While the disclosure provisions at first glance seem to be rather clear in this respect, both the Damages Directive as well as the national provisions implementing the Directive raise a number of questions. This article explores the issues raised by the new provisions under the laws of France, Germany, Italy, the Netherlands, and the United Kingdom.

I. Introduction Alex Petrasincu Partner, Hausfeld, Düsseldorf and Berlin 1. The disclosure provisions in Articles 5 to 8 of the Damages Directive do not only oblige the Member States to ensure that national courts can order individuals and companies to disclose certain evidence, but also to order the disclosure of evidence by competition authorities. 1. Power of national courts to order disclosure by public authorities 2. This provision, of course, raises several interesting and difficult questions. Are national courts able to order the European Commission or the authorities in other Member States to disclose certain evidence? And how will the European Commission and the national competition authorities respond to such disclosure orders? 3. The Damages Directive itself is

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Laurence Idot, Florian Wagner-von Papp, Cristoforo Osti, Frank Kroes, Alex Petrasincu, Disclosure of evidence included in the file of a competition authority (Implementation of the EU Damages Directive into Member State law - Würzburg, May 5, 2017), September 2017, Concurrences Review N° 3-2017, Art. N° 84672, www.concurrences.com

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