In a related matter, litigation around the Commission's 2009 referral against producers of long steel products continues its protracted course in light of the Competition Appeal Court (CAC) ruling this month regarding whether a copy of the leniency application on which the referral is partly based should be made available to the respondents. The Tribunal had previously denied access based on a finding that litigation privilege attached to the application. The CAC found that a leniency application did not attract privilege, but nevertheless did not grant access based on the fact that the leniency applicant had claimed its application as confidential. As a confidentiality claim can only be set aside by the Tribunal, the CAC referred the matter back to the Tribunal to determine whether the information submitted is indeed confidential and if so, to consider an order concerning how access to the information might be made (in this regard, a convention has developed whereby access is initially granted to legal advisors only).

The decision is key as it now means that leniency applications cannot remain completely shrouded while forming the basis of a complaint referral. It remains to be seen how the Tribunal will deal with the question of whether a leniency application can in principle be confidential, despite the fact that it contains evidence that will in due course be used in the prosecution of a case in public.

Written by Chris Charter, Director, Competition practice, Cliffe Dekker Hofmeyr