Under (file) cover – No access to FCO case files

Co-authored by Valentin Hanke

When proving damage claims, gaining access to seized documents from cartel proceedings might be useful. In a recent decision, the German Federal Administrative Court drew clear limits on the rights of third parties requesting access to FCO decisions and case files – and clarified whether the German Freedom of Information Act (IFG) applies in cases of cartel damages (spoiler: not applicable). After outlining the decision, we will take a look at what meaning the IFG has for antitrust law.

Decision of the Federal Administrative Court (BVerwG)

Jet, a nationwide petrol station operator, is claiming damages in civil court proceedings against various banks due to their agreements on fees for electronic cash payments. The agreements ended in 2014 through commitments offered by the banks. The German Federal Cartel Office (FCO) declared the commitments to be binding (hereinafter referred to as “the FCO’s decision”).

In order to support its damage claim, Jet demanded full access to the FCO’s decision as well as supporting documents from the FCO’s case file. The FCO declined this request, which Jet challenged in administrative court proceedings. Jet believed it was entitled to access to the FCO’s decision and the supporting documents on the basis of the IFG. This was initially upheld by the Administrative Court; the Higher Administrative Court rejected a claim under the IFG but granted Jet access (only) to the FCO’s decision on the basis of the German Act Against Restraints on Competition (GWB).

Jet and a banking association appealed this decision to the Federal Administrative Court, which has now ruled:

• The IFG does not grant access to information in the context of cartel damage claims.
• Instead, the GWB’s provisions on access to information take precedence. The IFG does not apply where more specialised law exhaustively governs access to information. Accordingly, whether a third party is granted access to information is at the FCO’s discretion and depends on whether the third party has a legitimate interest.
• This also applies in cases that pre-date the entry into force of the relevant provisions of the GWB (Sec. 56(5)).
• Jet was nevertheless granted access at least to the FCO’s decision – based on Sec. 56(5) GWB. The Federal Administrative Court clarified that ongoing damages claims can constitute a legitimate interest to be granted access to information.
• However, access to information for the purpose of damages claims is limited to the decision itself. Access to information from the case file beyond the decision cannot be granted under the exhaustive provisions of the GWB.

As such, the Federal Administrative Court has not made a surprising decision but instead confirms the general view and earlier rulings. The decision now raises the question of what significance the IFG could still have for antitrust law.

Freedom of Information Act

But let’s take a closer look at the IFG, which has been in force since 2006. It gives everyone the right to access official information by submitting a request to federal authorities (such as the FCO) for information, inspection of files, or access by other means. The right to information is frequently used by journalists.

Needless to say, the IFG does not apply without limit: State secrets and certain third-party interests, such as personal data, intellectual property, and business secrets, are generally excluded from information access. The IFG’s purpose is to promote transparency in the actions of federal authorities. This transparency is vital to enable members of the public to monitor government actions, exercise their rights as citizens, and ensure freedom of democratic opinion formation and decision-making.

IFG and FCO

One way to obtain information i.a. from the FCO is using the “FragdenStaat”-platform. This platform assists citizens in submitting information requests and publishing the outcome. In practice, anyone seeking information from the FCO is routinely informed that they must first demonstrate a legitimate interest in the information. Further, the FCO proceeds by pointing out the possibility of an administrative fee of up to €5,000.00 and asks whether the inquirer really wants to pursue the request considering this.

Once a request has been made, the question arises as to whether and in what way the FCO must respond. The following clarifications have been made in the recent years:

• The IFG does not apply to information on fine proceedings.
• In a similar case to the one discussed above, the Federal Administrative Court held in 2019 that the IFG does not entitle individuals (respectively a group of journalists) to access the case handler’s memorandum in a merger case. It found that the knowledge of the subsequent publication alone considerably restricts the consultation process in the current decision and, particularly, future cases.
• In administrative proceedings, there technically still is a right for everyone to access information regarding FCO proceedings. However, two conditions have to be met: There has to be a legitimate interest in the information and the disclosure of the information must not obstruct the work of the FCO. The limitation to the FCO’s decision only applies to cartel victims claiming damages.

Apparently, the release of information from FCO proceedings to third parties is the absolute exception. In fact, enquiries on FragdenStaat.de marked as ‘successful’ have often related to general administrative matters (e.g., expenditure on fleet cars or energy-saving measures), statistics, or have been resolved by referring to publicly available information. This means that access was granted in these cases either because it was not directly related to specific administrative (cartel) proceedings or because it did not obstruct the FCO’s work.

Yet, third parties including cartel victims seeking damages are not entirely without options for accessing the relevant information needed to quantify their damages. Other sections of the GWB, which have also been added to implement the EU Damages Directive of 2014, allow third parties to request access to documents held by cartelists or the FCO via the court during damages proceedings.

Key Findings and Outlook

Here are five key findings flowing from the court decision:

• In case of cartel damage claims access to information is granted in accordance with the GWB – the IFG is not applicable.
• However, ongoing damages claims can constitute a legitimate interest to be granted access to information according to the GWB, albeit limited to the non-public final decision.
• In the past, upon IFG requests the FCO has granted access to information related to general administrative matters rather than to specific administrative (cartel) proceedings.
• There is no indication that the Federal Administrative Court ‘s decision will lead to any significant change in the FCO’s transparency regarding IFG-requests.
• It remains to be seen, though, how and under what circumstances, third parties will be able to successfully demonstrate a legitimate interest apart from cartel damages cases.

Co-author Valentin Hanke studied law in Münster, Athens and Amsterdam (and currently works at ROCAN as a trainee lawyer).

Photo by Maksym Kaharlytskyi on Unsplash