Cartel damages: disclosure of evidence, proportionality and confidentiality

Section 37j(1) of the Austrian Cartel Act concerns proceedings for compensation claims arising from an infringement of competition law. For the claim, it is sufficient to set out the facts and evidence available with reasonable effort in a way that sufficiently supports the plausibility of the damages claim. The claimant therefore does not have to possess every item of information held exclusively by the other side at the outset.

On a reasoned application, the court may order the opposing party or a third party, after hearing that person, to disclose evidence within its control. The provision also covers evidence containing confidential information. The disclosure must remain proportionate, taking into account the legitimate interests of all parties and affected third parties.

The application remains part of the civil proceedings. It supports the investigation of a plausible damages claim and does not create general access to a competitor’s business records. The article on algorithmic price coordination between retailers shows, as a related cartel topic, why technical data, communication channels and concrete pricing events must be described separately.

Under section 37j(3) of the Austrian Cartel Act, the party must define the evidence or relevant categories as specifically and precisely as possible. The available facts set the limit. An application should therefore describe the market, products or services, period, businesses involved, document type and expected evidential value.

A category may cover internal price lists for a defined product and period or communications concerning a specifically identified price change. The clearer the category is linked to causation, loss or another claim element, the easier it is to assess its scope. Suspected records should not be described only with a broad label.

The application should also explain which information is already available and where the gap remains. The party should organise its own invoices, market observations, contract records and contemporaneous communications. The article on test purchases as evidence concerns a different legal basis, but it likewise shows why a defined factual question is more useful than an unordered collection of documents.

Under section 37j(4) of the Austrian Cartel Act, the court weighs the legitimate interests of all parties and affected third parties. It considers in particular how far the parties’ submissions are supported by accessible facts and evidence. A plausible core of the claim is therefore as important as the description of the requested record.

The scope and cost of disclosure must also be assessed, especially for third parties. An unfocused search for information that is unlikely to be relevant to the proceedings should be prevented. The application should therefore limit the search and explain which claim element the requested category is intended to prove.

Confidential information and available protective measures are part of the assessment. Under section 37j(5), an undertaking’s interest in avoiding damages claims for competition law infringements is not protected and must be disregarded in the proportionality review. This does not mean that every requested file is released, because relevance, scope and protection still require examination.

Section 37j(6) requires the court to order effective measures to protect confidential information. The provision gives examples such as a redacted extract, excluding the public from the hearing, limiting the group allowed to know the evidence and obtaining a summary from an expert that contains no confidential information.

The appropriate measure depends on which information is needed for the claim and how protection can be achieved. An application can therefore suggest which passages may be redacted, who should have access or whether an expert can prepare a neutral summary. Protective measures must not unduly restrict the parties’ procedural rights.

For specifically identified evidence, section 37j(7) provides for an initial court review. The person required to disclose may rely on a statutory duty of secrecy or a right to refuse testimony under section 157(1)(2) to (5) of the Austrian Code of Criminal Procedure and submit the record first only to the court. After reviewing it without the parties, the court decides whether and to what extent the other party receives access.

The application may be directed against the opposing party or a third party. The decisive point is that the identified evidence is within that person’s control. For a third party, the applicant should also explain its role in the supply chain, market or creation of the record and why the information is expected to be held there.

Third parties are heard before an order is made. Section 37j(2) also refers to section 307(1) of the Austrian Code of Civil Procedure, under which a third party from whom disclosure is sought may be examined by the court. The application should therefore describe the burden on that third party realistically and keep the category limited to the relevant material.

A bare assumption that a business holds “all information” does not satisfy the required definition. Useful indications may come from contracts, invoices, public data, business processes, existing communications or the company’s role. The reasoning should make facts and inferences recognisable as separate elements.

Section 37k concerns evidence in files of courts or authorities. The court may request disclosure by way of legal or administrative assistance where the parties or a third party cannot obtain the evidence with reasonable effort. An authority therefore does not become a general information source for civil proceedings.

Where the application concerns information in the file of a competition authority, the court must also consider how specifically the documents are identified and whether disclosure must be limited to protect effective public enforcement. The competition authority is given an opportunity to comment before the decision and may provide its own views on proportionality.

The application should therefore identify the authority, proceedings, procedural status, specific file location or document category and the failed attempt or reason why the party cannot obtain it independently. A general reference to a cartel file does not answer these questions. Private business records remain governed primarily by section 37j.

Section 37k(3) postpones disclosure of specific authority materials until the authority proceedings have ended. This includes information prepared specifically for the proceedings, information prepared by the authority during the proceedings and sent to the parties, and withdrawn settlement submissions.

Leniency statements and settlement submissions may not be ordered to be disclosed under section 37k(4). The prohibition does not cover information that existed independently of the authority proceedings even if that information is also held in the authority file. The origin of the information must therefore be described precisely, not just its location.

Under section 37k(5), the restrictions also apply to orders requiring parties to produce such evidence. Its use is unlawful where its production cannot be ordered. A person who obtained evidence solely by inspecting an authority file may, under section 37k(6), use it only in the proceedings and in the role described by the statute.

Section 37j(8) distinguishes between an order for disclosure and a refusal. The person required to disclose may challenge an order. The party that requested disclosure may challenge a refusal only together with the final decision. This statutory allocation should be included in procedural planning.

An order under section 37j(2) becomes enforceable after it is final. Section 79 of the Austrian Non-Contentious Matters Act applies by analogy to enforcement. The date of finality and the exact scope of the order should therefore be recorded alongside the evidence category that was requested.

Section 37k(7) contains a separate appeal rule for the court review of material alleged to be a leniency statement or settlement submission. That decision may be challenged only by the person required to disclose and the author of the evidence. Other parties or third parties receive access only to the extent that a final decision establishes that the disclosure prohibition does not apply.

The initial file should set out the alleged competition law infringement, the claimant’s market role, the affected transactions and the suspected loss separately. It should include contracts, invoices, price lists, quantities, delivery data, internal calculations and relevant communications. Each record should be described by origin, period and any later change.

Each requested category needs its own explanation: which fact should it prove, which accessible circumstances support plausibility, who is likely to control it and why independent acquisition is not reasonably possible? Where confidential information is involved, the application should include a concrete protective proposal.

Before filing, also record authority proceedings, access to files, settlement discussions and preservation steps with their dates. This helps distinguish private business records, authority material and assumptions. An individual assessment remains necessary because sections 37j and 37k do not create a general disclosure order.