CJEU Case C-2/23 / Judgment
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CJEU Case C-2/23 / Judgment
Key facts of the case:
Reference for a preliminary ruling – Competition – Article 101 TFEU – Effectiveness – Directive 2014/104/EU – Rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union – Article 6(6) and (7) – Article 7(1) – Directive 2019/1/EU – Empowering the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market – Article 31(3) – Scope – Mechanism for mutual administrative and judicial assistance between national authorities – Transfer of the file from a competition authority to an authority conducting a criminal investigation – Addition to the file of a criminal investigation of leniency statements and settlement submissions and their annexes – Access to those documents by persons under investigation and other parties to such proceedings
Outcome of the case:
On those grounds, the Court (Fifth Chamber) hereby rules:
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Article 101 TFEU
must be interpreted as not precluding national legislation under which the national competition authority and the national cartel court are required, in the context of the mechanism for administrative assistance laid down in that legislation, to transmit to the public prosecutor’s office, upon its request, the files of that competition authority and of that cartel court, including leniency statements and settlement submissions in those files, as well as the information obtained from them, provided that such a mechanism does not undermine the effectiveness of that article.
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Article 31(3) of Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market
must be interpreted as meaning that the protection which it affords to leniency statements and to settlement submissions does not cover documents and information provided in order to explain, specify in detail and prove the content of those statements or submissions.
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Article 31(3) of Directive 2019/1, read in the light of the first and second paragraphs of Article 47 and Article 48(2) of the Charter of Fundamental Rights of the European Union,
must be interpreted as not precluding national legislation under which, in the context of criminal proceedings which do not concern an infringement of competition law, persons under investigation who are not the authors of those statements or submissions have the right of access to leniency statements and settlement submissions, drawn up for the purposes of proceedings before a national competition authority and transmitted to national criminal authorities, but as precluding national legislation under which such right of access is granted to other parties to those criminal proceedings, in particular, persons harmed by the infringement of competition law concerned who seek compensation for the harm caused by that infringement.
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Paragraphs referring to EU Charter
78. In the light of the preliminary considerations set out in paragraphs 40 to 56 above, it must be held that, by its third question, the referring court is, in essence, asking whether Article 31(3) of Directive 2019/1, read in the light of the first and second subparagraphs of Article 47 and Article 48(2) of the Charter, must be interpreted as precluding national legislation under which, in the context of criminal proceedings which do not concern an infringement of competition law, persons under investigation who are not the authors of those statements or submissions, as well as other parties to those criminal proceedings, in particular, persons harmed by the infringement of competition law concerned who seek compensation for the harm caused by that infringement have the right of access to leniency statements and settlement submissions, drawn up for the purposes of proceedings before a national competition authority and transmitted to national criminal authorities.
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82. In that regard, as regards, in the first place, access to leniency statements and settlement submissions by persons under investigation who are not the authors of such documents, it must be recalled that, in accordance with a general principle of interpretation, Article 31(3) of Directive 2019/1 must be interpreted, as far as possible, in such a way as not to affect its validity and in conformity with EU primary law as a whole and, in particular, with the provisions of the Charter (see, to that effect, judgment of 16 November 2023, Ligue des droits humains (Verification by the supervisory authority of data processing), C‑333/22, EU:C:2023:874, paragraph 57), in the present case, with Article 47 of the Charter, which enshrines the right to an effective remedy and to a fair trial, and with Article 48(2) thereof, which seeks to ensure respect for the rights of the defence.
83. Furthermore, in accordance with Article 52(3) of the Charter, the rights contained therein have the same meaning and scope as the corresponding rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (ECHR), which does not preclude EU law from affording more extensive protection. When interpreting the rights guaranteed by the first and second paragraphs of Article 47 and by Article 48(2) of the Charter, the Court must, therefore, take account of the corresponding rights guaranteed by Articles 6 and 13 ECHR, as interpreted by the European Court of Human Rights, as the minimum threshold of protection (judgment of 22 June 2023, K.B. and F.S. (Raising ex officio of an infringement in criminal proceedings), C‑660/21, EU:C:2023:498) paragraph 41 and the case-law cited).
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86. It follows that, in order to guarantee the protection of the rights of persons under investigation in the context of criminal investigation proceedings, enshrined in the first and second paragraphs of Article 47 and in Article 48(2) of the Charter, Article 31(3) of Directive 2019/1 cannot be interpreted as precluding in absolute terms those persons from having access, for the purposes of exercising their rights of defence, to leniency statements and to settlement submissions attached to the file relating to those proceedings, in particular where complaints made against those persons are based on information contained therein. It is apparent from the very wording of Article 31(3) of Directive 2019/1 that the parties subject to the relevant proceedings have a right of access to those statements or submissions precisely for the purposes of exercising their rights of defence. That access cannot therefore be refused solely on the basis of the nature of those statements and submissions, since their non-disclosure to the same persons can be justified only on grounds relating to the protection of a given public interest, in particular the confidentiality of the information contained in those documents and the effectiveness of EU competition law, following a case-by-case examination.
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92. In the light of all the foregoing considerations, the answer to the third question is that Article 31(3) of Directive 2019/1, read in the light of the first and second paragraphs of Article 47 and Article 48(2) of the Charter, must be interpreted as not precluding national legislation under which, in the context of criminal proceedings which do not concern an infringement of competition law, persons under investigation who are not the authors of those statements or submissions have the right of access to leniency statements and settlement submissions, drawn up for the purposes of proceedings before a national competition authority and transmitted to national criminal authorities, but as precluding national legislation under which such right of access is granted to other parties to those criminal proceedings, in particular, persons harmed by the infringement of competition law concerned who seek compensation for the harm caused by that infringement.
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Paragraphs referring to EU Charter (original language)