EU: Can a competition authority share leniency applications with the public prosecutor?

Introduction

In many countries, the national competition authority routinely informs the Public Prosecutor’s Office when it investigates a competition law infringement that also involves a violation of criminal law. For instance, bid rigging[1] is an offence both under competition law and under criminal law. Moreover, some countries (such as the UK and Ireland) also treat hardcore cartels as a criminal offence. The information of the Public Prosecutor’s Office typically triggers a parallel (or subsequent) criminal investigation, which may result in fines or even prison sentences for individuals involved. A recent example involves a criminal trial in Ireland that was triggered by a cartel investigation by the Irish Competition Authority, and where five individuals involved in bid rigging are now facing potential prison sentences.^[2]

Competition authorities obviously have the right (and in some countries even the obligation) to inform the Public Prosecutor’s Office when they become aware of a potential criminal law offence. However, can the Public Prosecutor’s Office or a criminal court request the competition authority to provide documents and information that the authority obtained from leniency applicants?

A recent judgment of the Court of Justice of the EU has provided useful guidance on this question.

What happened? 

On 30 October 2025, the Court of Justice of the EU (“CJEU”) issued its judgment in Case C-2/23, FL und KM Baugesellschaft. 

The case originated from a cartel investigation into Austria’s construction sector by the Austrian Competition Authority. FL und KM Baugesellschaft, one of the companies under investigation, submitted a leniency application and received a reduced fine in return. The controversy arose when the Competition Authority shared the company’s leniency statements and settlement submissions, including their annexes, with the Public Prosecutor’s Office, which then instructed the police to carry out further investigations on the basis of that information. FL und KM Baugesellschaft requested the Public Prosecutor’s Office not to include the documents in its file and not to use them, and subsequently challenged the refusal of the Public Prosecutor’s Office before a court for criminal matters and, on appeal, before the Higher Regional Court of Vienna. 

The Higher Regional Court of Vienna decided to stay the proceedings and request a preliminary ruling from the CJEU on whether the protection that EU competition law grants to leniency materials prevents competition authorities from sharing them with public prosecutors and criminal courts. 

The CJEU made clear that cooperation between public bodies must not compromise the effectiveness of leniency programmes. This could be the case where companies that are willing to disclose their participation in a competition law infringement fear that their leniency materials will be subsequently disclosed to other authorities, and are thus deterred from submitting a leniency application.[3] Accordingly, the CJEU held that EU competition law does not categorically preclude competition authorities from sharing leniency materials with prosecutors. However, they can do so only if this does not weaken the incentive for potential leniency applicants to cooperate with national competition authorities.[4]

Another question raised by the referring court was whether the protection afforded to leniency statements and settlement submissions also covers documents and information that explain, specify and prove the content of those statements and submissions. In addressing this issue, the Court recalled that the ECN+ Directive[5] limits access to a competition authority’s file only with regard to leniency statements and settlement submissions. It does not extend this protection to other materials in that file, such as the annexes. The Court also noted that, according to settled case law, the publication of leniency statements is not permitted in any circumstances, but the publication of information from documents provided in support of such a statement is allowed, subject to the protection of business secrets and other confidential information (see Case C-162/15 P, Evonik Degussa v Commission).[6] Consequently, the Court concluded that EU competition law does not afford the same level of protection to leniency statements and settlement submissions as it does to documents and information provided to explain, specify and prove their content.[7]

Finally, the judgment also clarifies who can access leniency statements and settlement submissions. The Court concluded that, in order to protect the rights of persons under investigation in criminal proceedings, the other parties under investigation have the right to access those statements and submissions. By contrast, this right of access does not extend to other parties to the criminal investigation, in particular persons harmed by the infringement of competition law who seek compensation, as such access could undermine the effectiveness of the leniency programme.[8]

Practical considerations 

Companies considering applying for leniency need to keep in mind that their leniency materials are not fully protected from disclosure in other proceedings, including criminal investigations. While the risk is low that the leniency application and settlement submissions will be disclosed to other authorities (as this would typically be viewed as harming the effectiveness of the leniency programme), there is a real risk that the annexes to these documents and other leniency materials will be shared with other authorities.

For more information or further guidance in this area, please contact Anne Federle and Álvaro López de Ochoa García. 

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