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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.
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Palavras-chave
Competition law EU damages directive Private enforcement Cartels Leniency Access to documents Access to file Antitrust litigation