ECJ ruling on leniency statements: balancing cooperation and transparency

In its 30 October 2025 judgment in Case C-2/23 (Baugesellschaft), the European Court of Justice (ECJ) clarified how far the protection of leniency statements extends once competition files are transferred to public prosecutors – and, crucially, what qualifies as a “leniency statement” in the strict legal sense.

The judgment lies at the intersection of two objectives of EU competition policy that often pull in opposite directions: on the one hand, the need to protect leniency materials so that companies continue to cooperate with authorities; on the other, the goal of transparency and compensation for victims through private enforcement. The Court’s reasoning seeks to keep both aims in balance, setting clear limits on when and how leniency materials can be accessed outside competition proceedings.

By confirming that the confidential treatment of leniency statements “travels with the file”, while distinguishing between the protected statement itself and any supporting materials, the ECJ effectively transforms established principles into an operational test for file transfers and access. For companies and counsel, this ruling reshapes how cooperation materials must be structured and managed across administrative and criminal contexts.

Background

The case arose in Austria, where leniency materials from a construction-cartel investigation were passed from the national competition authority and court to the public prosecutor. Several managers faced criminal charges in connection with construction tenders. Both, they and potential damages claimants, sought access to the transferred file.

The Austrian Supreme Court asked the ECJ whether such transfers are compatible with EU law, whether other parties can access the material once transferred, and what exactly falls within the protected scope of a leniency statement.

Three layers of disclosure

(1) Transfer between authorities – permitted but conditional

The Court held that EU law does not prevent a national competition authority from forwarding files, including leniency materials, to another public body such as a prosecutor’s office. Such transfers are allowed only insofar as they do not undermine the effectiveness of competition enforcement or the functioning of leniency programmes. Member States must nevertheless ensure that the same level of confidentiality required by Article 31(3) ECN+ Directive (see below “What is protected”) continues to apply once the file changes hands. In other words, the protection travels with the file.

(2) Access for claimants – excluded

Private damages claimants and other third parties have no right of access to leniency statements, even if national rules normally allowed file inspection. According to the Court, granting such access would undermine the incentives for companies to self-report and jeopardise the functioning of leniency systems across the EU.

(3) Access for defendants – possible but tightly controlled

Apart from public bodies such as prosecutors, which may receive the file under national law, subject to the continued application of the protection required by Article 31(3) ECN+, no other external actors are entitled to inspect leniency materials. The only group that may, under strict conditions, obtain access are defendants in criminal proceedings. Importantly, defendants do not enjoy an unqualified right of access. The Court rejected the notion that any request linked to defence rights automatically prevails.

It introduced a two-step test (para. 86):

1. Necessity. Access may be granted to defendants only if and to the extent necessary to enable the exercise of defence rights under Articles 47 and 48 of the Charter of Fundamental Rights of the European Union.
2. Public-interest justification. Even where this necessity exists, access may still be refused if a specific public interest – in particular the confidentiality of the information or the effectiveness of EU competition enforcement – requires non-disclosure.

This is not an open balancing test. The ECJ identified limited and pre-defined grounds that can justify non-disclosure, which must be verified in each individual case. The result is a structured, two-tier filter that leaves no room for general or automatic disclosure.

What is protected – and what is not

The ECJ also clarified the material scope of protection. It drew a sharp line between the leniency or settlement submission stricto sensu – the statement made for the purpose of obtaining immunity or a reduction of fines – and any documents submitted merely to explain or prove that statement, such as annexes, tables, reports or presentations.

Crucially, form determines protection: If factual information or meeting notes are integrated within the leniency statement itself, they fall under the protected sphere. If the same information is merely attached as an annex, it loses that status.

As the ECJ confirmed in Baugesellschaft (C-2/23), the protection does not extend to “pre-existing information” or documents submitted to prove the content of a leniency statement – such as annexes, tables or reports – which remain outside the specific protection regime (paras 70 and 72). This distinction can determine whether claimants may later access a document – a seemingly technical point with significant practical impact.

In short, only the statement itself enjoys the special protection – that is, the prohibition on disclosure or external use outside the enforcement context. Supporting material remains potentially discoverable, subject only to other rules such as legal professional privilege or trade-secret protection.

Practical implications

For companies, the Austrian Construction Cartel ruling translates into a clear operational duty: the protected part of any cooperation must be clearly identifiable and defensible. Authorities, prosecutors and courts will expect this separation to be visible in the file.

Three practical control points emerge from the judgment:

• Identifiability – The leniency statement must be clearly distinguishable from unprotected materials.
• Necessity – Access for defendants may be granted only where genuinely required to exercise defence rights.
• Justification of non-disclosure – Even where that necessity exists, access can still be refused if a specific public interest, such as confidentiality or enforcement effectiveness, requires it.

For companies and counsel, the message is pragmatic: maintain strict separation between the leniency statement and supporting evidence, limit circulation of drafts, and keep clear version control of cooperation materials. Such discipline not only ensures compliance with the ECN+ standard but also helps preserve confidentiality when files move across authorities.

EU-level implications (Commission, eLeniency, OLAF and beyond)

Although the ECJ ruling concerned national proceedings, its logic carries over directly to EU-level enforcement. The same questions arise when leniency materials move beyond the Commission’s immediate procedure: what access rights exist for other authorities, defendants, claimants or third parties – and how far does the protection travel?

Institutional exchanges. Within the European Competition Network (ECN), the Commission may transmit information, including leniency materials, to national competition authorities under Article 12 Regulation 1/2003, but only where the receiving authority ensures an equivalent level of protection (Leniency Notice 2006, para. 35). Outside this framework – for example, to criminal prosecutors, the EU’s Anti-Fraud Office (OLAF) or national courts – such transfers are not foreseen. In practice, leniency statements therefore remain confined within the ECN, reflecting the Baugesellschaft principle that confidentiality must be preserved whenever files circulate between authorities.

Access for defendants. At EU level, only undertakings under investigation – not individual employees – can be addressees of a Statement of Objections or a decision. Their right of access is governed by Article 27(1) of Regulation 1/2003 and the Access-to-File Notice (2005). This right exists solely to protect the rights of defence and is limited to the evidence on which the Commission relies, not a general discovery tool. Under the Leniency Notice (2006, paras. 33–34) addressees may exceptionally be allowed to view corporate leniency statements under strict conditions – without making any copy and solely for the purpose of exercising their rights of defence. This view-only access does not amount to disclosure in the ordinary sense. The Commission may, however, disclose other factual evidence on which it relies. Complainants and other third parties are expressly excluded.

Access for victims and other third parties. Potential damages claimants, complainants or other interested parties have no direct right to inspect the Commission’s file. Their access to evidence is governed instead by the Damages Directive 2014/104/EU, which allows national courts to order disclosure – but expressly excludes leniency statements and settlement submissions from production (Article 6(6) and (9)).

The same principle applies to requests under the EU’s public-access regime (Regulation 1049/2001, Article 4(2) and (7)), where institutions must refuse disclosure if it undermined the purpose of investigations, and where confidentiality may continue even after the proceedings have ended.

Digital framework. The eLeniency system translates these rules into practice. Corporate statements are submitted through a secure online workspace where they can be viewed only by the Commission and the submitting company. Printing, downloading or copying is disabled; users must accept confidentiality conditions and sign an electronic acknowledgement once access ends. This design ensures that protection is not only legal but also technical.

For companies cooperating with the Commission, the takeaway is clear: the Baugesellschaft logic applies by analogy. Leniency statements remain protected wherever they go; any disclosure – even to defendants – must pass a necessity test and can still be refused to safeguard confidentiality. For claimants and other outsiders, such access remains unavailable. The Commission’s procedures and the ECN framework together ensure that the protection travels with the file.

Balancing transparency and incentives

The Austrian Construction Cartel ruling encapsulates the tension between transparency and enforcement incentives. By allowing limited access for defendants but excluding claimants, and by confirming that the protection of leniency statements continues after transfer, the ECJ seeks to reinforce the credibility of leniency programmes while safeguarding the integrity of criminal defence rights.

For companies considering cooperation, the message is pragmatic but sharp: protection is not automatic – it must be secured through structure, documentation and foresight. For practitioners, the framework remains familiar, but the expectations are higher: authorities will now expect the protected core to be clearly identifiable in any file they receive. Form matters more than ever.