Leniency documents may not be accessed by clients during award procedures
Leniency documents and settlement submissions are subject to specific confidentiality obligations, which are laid down in the Federal Cartel Act (KartG). Circumvention of this legal protection of leniency documents and settlement submissions, for example by invoking procurement regulations, is not admissible.
Only a court of law can decide whether a document falls under a protected category. A private party (be it a client or involved party) is not entitled to make this decision.
To ensure efficient enforcement of competition law, information obtained from the Austrian Federal Competition Authority’s files must not be disclosed until ongoing proceedings before the AFCA/Cartel Court have been completed.
Disclosure of leniency documents to law enforcement agencies
In its capacity as an official authority, the AFCA is not only obliged to report criminal offences but also to provide official assistance to, for instance, law enforcement agencies. It may therefore be necessary to hand over leniency documents and settlement submissions to law enforcement agencies. National law currently requires the AFCA to hand them over.
Use of leniency documents in Cartel Court proceedings
The AFCA is tasked with uncovering and prosecuting antitrust infringements. In this context, it is entitled to use leniency documents to file its own applications for findings, termination and fines with the Cartel Court, as well as to give parties opportunity for explanation in preparation of any such applications. This means that the AFCA may use them not only against the leniency recipient but also against other companies involved in the same infringement.
The paper as well as additional information relating to the leniency programme can be found in German on our website.