Disclosure of evidence in cartel litigations in the EU: is balance of victims’ rights and public interests possible?

Abstract

The research focus is an assessment of disclosure rules in the European Union and a perspective for implementation of the US discovery rules to improve European private enforcement. For these purposes the EU disclosure rules are compared with the US discovery rules; the influence of tension between disclosure of evidence and leniency programme on the effectiveness of protection of information is analyzed in order to propose areas for improvement and solutions to find a balance between some inconsistencies of the EU disclosure rules with interests of European plaintiffs in cartel litigations. The research method is not limited to a doctrinal approach to the EU and US legislation, but includes case law, and secondary sources. This paper does not deal with particular types of evidence and generic issues of disclosure unrelated to the cartel cases. The author contends that the American model of discovery in cartel cases cannot be transferred to the European context completely, even though disclosure of evidence in the EU is rather inefficient, and new rules are unlikely to protect consumers’ interests. In terms of consumers’ interests, protection facilitating follow-on actions looks more relevant on the EU level. Practically, the design of the US disclosure rules and priority of consumers’ rights effectively allow victims from the EU to sue in the US and obtain all necessary documents in the US proceeding. In this context convergence of the US and EU positions on disclosure of leniency materials could bring more certainty both to plaintiffs and defendants in cartel litigations.