The confidentiality of Leniency Documents and its articulation with actions for damages : the new paradigm brought by the damages directive

• Autor(a) principal: Metello, Inês Santana
• Data de Publicação: 2018
• Tipo de documento: Dissertação
• Idioma: eng
• Título da fonte: Repositório Científico de Acesso Aberto de Portugal (Repositórios Cientìficos)
• Texto Completo: http://hdl.handle.net/10400.14/27481
• topic: Competition law; EU damages directive; Private enforcement; Cartels; Leniency; Access to documents; Access to file; Antitrust litigation; Domínio/Área Científica::Ciências Sociais::Direito

Private enforcement follow-on actions may discourage cartel members from applying to leniency. To prevent the undermining of this public enforcement tool, it is necessary to find a proper articulation between damages actions and leniency programmes. This paper investigates, in light of the Damages Directive on actions for damages for infringements of competition law, what can be expected from the new framework for the disclosure of evidence and, particularly, from the application of Article’s 6(4) proportionality test to decide the disclosure of leniency documets. It starts off by analysing the state of the art before 2015 and continues to assess the novelties in disclosure of evidence brought by the Directive. It will evaluate the changes on access to leniency material under Portuguese Law, by examining the current Portuguese competition law and the Portuguese Private Damages Act, and the effect it can have in this Member State’s legal system. This paper further examines the principles which should be considered by national judges when striking the proportionality test, comparing European fundamental rights with the principles found in rulings from the Court of Justice of the European Union. This contribution will result in a suggestion of some criteria to be considered by national civil courts when determining third party access to leniency documents.