From Public Enforcement to Private Enforcement: Is Information Getting Lost Along the Way?

On 17 August 2026, the Official Journal published notice of an action brought before the General Court by Creditell GmbH against the European Commission (T-397/26). The case concerns two apparently distinct matters: the Commission’s refusal to grant access to selected documents from the file of the Trucks cartel (AT.39824) and its failure, almost nine years after adopting the 2017 Scania decision, to publish a definitive non-confidential version of that decision.

Neither issue is new. Both access to competition authority files and the publication of Commission antitrust decisions have generated a substantial body of EU case law. Yet their combination in this case brings into focus a broader question that extends well beyond Regulation 1049/2001 or the publication of a single cartel decision: how is information generated through public enforcement supposed to circulate into private enforcement? More specifically, what happens when the information made publicly available by the Commission is insufficient to enable claimants and national courts to make effective use of the disclosure mechanisms established by the Damages Directive (2014/104/EU)?

That question matters because follow-on litigation is often portrayed as the easy part of antitrust damages enforcement. That perception is only partly correct. Once a competition authority -and, in particular, the European Commission- has established an infringement, the claimant benefits from the binding effect of that decision as regards the existence and scope of the infringement. In cartel cases, the Damages Directive goes even further by introducing a rebuttable presumption that the cartel caused harm. Yet none of this eliminates the evidential burden. Claimants will frequently still need evidence concerning the operation of the infringement, its commercial context, causation, the existence and extent of harm, and its quantification. In non-cartel follow-on litigation, that evidential burden is even more significant. As I have argued elsewhere («Access to Evidence: the «disclosure scheme» of the Damages Directive» en Ferro, M.S., Marcos, F. & Rodger, B. J. (eds.) Research Handbook on Competition Law Private Enforcement in the EU, Elgar 2023, pp. 268-296), access to evidence remains a precondition for making the right to compensation effective, including in follow-on litigation.

The problem goes beyond proving causation or quantifying harm. Where the Commission's public decisions contain only a condensed account of the infringement, national courts may also develop divergent understandings of the infringement itself. The Trucks cartel litigation illustrates the point: while some courts have characterized the infringement essentially as an unlawful exchange of information, others have treated it as a price cartel capable of supporting different approaches to causation and quantification. The quality and availability of information may therefore influence not only the assessment of damages, but also the understanding of the infringement itself.

The Antitrust Damages Directive sought to address that evidential deficit through a carefully calibrated disclosure regime. By contrast, Regulation 1049/2001 pursues a different objective: ensuring transparency in the activities of EU institutions. These are distinct legal regimes, driven by different principles and serving different functions. Yet, in litigation following Commission infringement decisions, they inevitably intersect. The way in which the Commission publishes its decisions—and the extent to which access to its administrative file is available—may determine whether the disclosure mechanisms created by the Damages Directive can operate as intended.

The case therefore provides a useful lens through which to examine how these different mechanisms interact.

The evidence problem does not disappear after a Commission decision

The starting point should not be controversial. Effective enforcement of Articles 101 and 102 TFEU depends on evidence. This is self-evident for public enforcement, but it is no less true for private enforcement.

The European Antitrust Damages Directive was built around a simple recognition: competition damages litigation is characterized by information asymmetry (recital 15). Important evidence will often be held by the defendant, by third parties or by a competition authority rather than by the claimant. The Directive accordingly introduced a disclosure scheme intended to make access to relevant evidence possible while protecting legitimate interests (articles 5-8).

That intervention was important, but it should not be overstated. The Directive does not create a general right of discovery. Nor does it simply favor claimants. On the contrary, it attempts to strike a careful balance between the claimant's right to obtain the evidence necessary to make the right to full compensation effective and the defendant's legitimate interest in not being subjected to unnecessary, disproportionate or speculative disclosure requests. Accordingly, disclosure is governed by the principles of necessity and proportionality; broad fishing expeditions are excluded; requests directed to competition authorities are subject to a subsidiarity requirement; and different categories of evidence receive different levels of protection. Evidence prepared specifically for the investigation enjoys temporary protection, while leniency statements and settlement submissions receive the strongest level of protection.

Unsurprisingly, the sophistication of that legislative compromise has generated considerable interpretative uncertainty. Indeed, the disclosure provisions have become one of the most intensively litigated parts of the Directive, together with its rules on limitation periods. Over the last few years, the Court of Justice has progressively clarified essential aspects of the new regime: the notion of "evidence" and the scope of disclosure in PACCAR (C-163/21, EU:C:2022:863); the interaction between disclosure orders and pending Commission investigations in RegioJet (C-57/21, EU:C:2023:6); the conditions governing pre-action disclosure and the plausibility threshold in Meliá Hotels International (C-286/24, EU:C:2026:49); and the limits of protection afforded to evidence originating in competition authority files in FL and KM Baugesellschaft (C-2/23, EU:C:2025:848).

But the practical experience is less reassuring than the elegance of the legislative compromise might suggest. As I noted in my chapter on access to evidence in the Research Handbook on EU Competition Law Private Enforcement, the rules governing access to competition authority files raise difficult questions about subsidiarity, necessity and the timing of disclosure. In some circumstances, insisting that claimants first attempt to obtain evidence elsewhere risks turning access to the authority's file into a last resort and, if interpreted too strictly, delaying compensation rather than facilitating it.

More generally, the first years of application suggest that the effectiveness of the new regime depends not only on the quality of the legislative design, but also on the experience of the actors called upon to operate it. Many national courts are still developing familiarity with disclosure orders in competition litigation, while defendants—often sophisticated repeat players—have every incentive to exploit procedural complexity to resist or delay disclosure. Early experience has therefore revealed significant uncertainty, additional costs and procedural delays, precisely in an area where access to evidence is supposed to facilitate effective compensation.

This is important for the present discussion. The Damages Directive did not eliminate the information problem; it merely changed its nature. The debate is no longer whether claimants should have access to evidence, but rather through which mechanisms, under what safeguards and at what procedural cost that access should be obtained. That, in turn, makes timely publication of Commission decisions and an appropriately balanced regime of access to Commission files even more important in follow-on litigation arising from Commission decisions.

The missing link between transparency and disclosure

Two distinct legal regimes are relevant here, although they pursue different objectives.

On the one hand, Regulation 1049/2001 establishes a general right of public access to documents held by the EU institutions. It is an instrument of transparency, reflecting the principle that the Union should act as openly as possible.

On the other hand, the Directive 2014/104 governs disclosure of evidence in civil litigation. Its objective is not administrative transparency but effective judicial protection. Disclosure is available only to litigants, is subject to judicial control and is governed by principles of necessity, proportionality and procedural fairness.

The two regimes therefore answer different questions. The Regulation on Public Access asks whether a document should be accessible to the public. The Damages Directive asks whether pieces of evidence should be made available to parties engaged in specific litigation. Yet, in follow-on actions based on Commission infringement decisions, those two worlds inevitably meet. The Commission's administrative file simultaneously forms part of the institutional record of public enforcement and constitutes a potentially valuable source of evidence for subsequent damages actions. The difficulties surrounding access to Commission files have developed through a long and sometimes confusing line of case law.

The first line of case law developed in the context of access to evidence. In Pfleiderer (C-360/09, EU:C:2011:389), the Court of Justice rejected a categorical exclusion of access to the file of a national competition authority and stressed the need to weigh the interests involved in the circumstances of the individual case (¶¶30-32). Donau Chemie (C-536/11, EU:C:2013:366) subsequently reinforced that approach, rejecting a general and systematic exclusion of third-party access and emphasizing the importance of effective judicial protection for victims (¶49).

The picture looks rather different under Regulation 1049/2001. In EnBW (C-365/12P, EU:C:2014:112), the Court of Justice accepted a general presumption that disclosure of documents relating to antitrust proceedings would undermine the protection of the purpose of the investigation and the commercial interests of the undertakings concerned (¶¶92-95). The presumption was not irrebuttable: it could be displaced in relation to specific documents and did not preclude the existence of an overriding public interest in disclosure (¶117). Nevertheless, the practical consequence was that public access under Regulation 1049/2001 became the exception rather than the rule.

The General Court subsequently confirmed in Netherlands v Commission (Bitumen) T-380/08 (EU:T:2013:480), that this presumption could continue to apply even after the administrative investigation had been concluded.

That restrictive approach, however, does not exhaust the case law. In CDC Hydrogen Peroxide (T-437/08, EU:T:2011:752), the General Court stressed that exceptions to the principle of the widest possible public access must be interpreted strictly and that the Commission must explain how disclosure would specifically and actually undermine the protected interest. The case law on the publication of Commission decisions adds further qualifications that are relevant to the confidentiality interests underlying that presumption.

In Akzo Nobel (T-345/12, EU:T:2015:50), the General Court also made clear that an undertaking's interest in avoiding increased exposure to civil liability does not as such deserve protection, while recognizing the legitimate interest of victims in learning the details of the infringement in order to assert their rights. The Court of Justice subsequently confirmed in Evonik Degussa (C-162/15P, EU:C:2017:205) that the passage of time matters when assessing confidentiality: information that is at least five years old is, as a rule, presumed no longer to be current, unless it is shown exceptionally to remain an essential element of the commercial position of the undertaking concerned or a third party.

These different strands of the case law do not displace the general presumption recognized in EnBW. They do, however, make it harder to understand that presumption as an indefinite and undifferentiated shield for everything contained in a Commission antitrust file.

It is against this somewhat uneven jurisprudential background that the dispute in Creditell arises. In its decision of 3/6/26 [C(2026) 3943 final], the Commission relied on the general presumption of confidentiality applicable to antitrust files, even though the Trucks investigation was closed and the Scania decision had become final following the Court of Justice's judgment in 2024 (C-251/22P, EU:C:2024:103). It also rejected the existence of any overriding public interest in disclosure and pointed to the possibility that national courts may request information from the Commission under Article 15 of Regulation 1/2003.

The Commission further considered that, because the general presumption applied, it was not even required to examine whether partial access could be granted to the requested documents.

That position is particularly striking in the present case because some of the specifically identified documents for which access is sought are more than twenty years old, yet the contested decision contains no individual assessment of whether the information they contain retains any genuine commercial sensitivity.

The cumulative effect is striking. A claimant who identifies specific documents from a closed Commission investigation and explains why those documents are relevant to ongoing damages proceedings may nevertheless face a presumption that effectively closes the administrative file unless it can satisfy a particularly demanding burden of rebuttal.

The Creditell action challenges precisely that approach. Importantly, this was not a request for unrestricted access to the Commission's file. The applicant identifies specific categories of documents and explains why each of them is said to be necessary for the pending damages proceedings.

According to the published summary of the application, the claimant argues that the Commission cannot rely on the exceptions in Article 4 of Regulation 1049/2001 in a blanket and unsubstantiated manner to exclude victims from access to the file, and that the right to compensation and the principle of effectiveness require a restrictive interpretation of those exceptions.

Whether the General Court will accept those arguments remains to be seen. But the case raises a broader question that goes beyond the interpretation of Regulation 1049/2001. It is not whether Pfleiderer or EnBW were correctly decided. Those judgments addressed different legal regimes pursuing different objectives. The real question is whether, taken together, the rules governing administrative transparency and judicial access to evidence now provide a coherent framework for allowing information generated through public enforcement to circulate into private enforcement. That, rather than the outcome of any individual access request, is what makes this an important case.

The overlooked role of publication

The discussion becomes even more interesting when attention shifts from access to the Commission's file to the publication of its infringement decisions.

Unlike Regulation 1049/2001, Article 30 of Regulation 1/2003 is not primarily concerned with public access to documents. It establishes a specific obligation for the Commission to publish its infringement decisions while respecting legitimate business secrets. The case law has consistently recognized that this publication obligation serves several complementary objectives: it enables the public to understand the reasons underlying the Commission's action, informs economic operators of the conduct prohibited by EU competition law and, crucially, allows persons harmed by the infringement to learn sufficient details to exercise their rights (see, Wouter Wils “Publication of Antitrust Decisions of the European Commission” Concurrences 4/20, 93-118).

Publication therefore performs a function that goes well beyond administrative transparency. It constitutes the first channel through which the factual findings of public enforcement become available for private enforcement.

This explains why the case law governing publication has developed around a different balance. Confidentiality is not presumed simply because information originates from the Commission's file. Rather, the burden rests on the undertaking invoking confidentiality to demonstrate why particular information still deserves protection, and each confidentiality claim must be assessed on its own merits. Nor can an undertaking normally invoke its interest in avoiding civil liability or public scrutiny of its own unlawful conduct as a legitimate reason for preventing publication.

The temporal dimension is equally important. The Commission's obligation to publish is not open-ended. The General Court has recognized that publication should take place within a reasonable time and that, where confidentiality disputes concern only part of the decision, the Commission should not necessarily wait until every request has been finally resolved before publishing a provisional non-confidential version.

Against that background, the Scania situation is difficult to ignore. The decision was adopted in September 2017. Nearly nine years later, no definitive non-confidential version has yet been published. The Commission explains that numerous confidentiality requests remain pending before the Hearing Officer.

Creditell illustrates the practical limits of that situation. The applicant argues that the publicly available versions of the Settlement Decision and the provisional Scania Decision no longer provide sufficient information for national courts and claimants to understand the infringement consistently or to litigate its consequences effectively. According to the application, the resulting informational deficit has contributed to divergent characterizations of the truck cartel and, ultimately, to markedly different approaches to causation and the quantification of damages across national courts.

The issue is not whether those requests deserve careful examination. They undoubtedly do. Most importantly for the present litigation, the question is a different one: can unresolved confidentiality disputes effectively suspend the operation of Article 30 for almost a decade?

If publication constitutes one of the principal mechanisms through which the results of public enforcement become usable in private litigation, prolonged delays inevitably affect more than transparency. They also affect the practical effectiveness of follow-on actions.

Publication and access are complementary

Publication and access to the Commission's file should not be regarded as alternative mechanisms for making information available. They perform different functions for private enforcement and are intended to complement, rather than replace, one another.

Publication serves an institutional function. It explains the infringement, makes the exercise of the Commission's enforcement powers transparent and provides victims, courts and market participants with an authoritative account of the unlawful conduct established by the Commission.

Access to the underlying administrative file serves a different purpose. It is not intended to reproduce the public decision in greater detail, but to allow litigants and courts, where necessary and subject to appropriate safeguards, to obtain evidence that cannot realistically be incorporated into a published decision. In other words, publication explains the infringement; access to the file may, in appropriate cases, help prove its consequences.

The legal regime reflects this distinction. Publication allows victims to understand the infringement and to bring follow-on actions. It is then for the national court, applying the disclosure rules of the Damages Directive and national procedural law, to determine whether additional evidence should be produced during the litigation.

The problem arises when each of these mechanisms becomes less effective than the system assumes.

A decision may be published many years after its adoption, in a heavily redacted and only provisional version. At the same time, the underlying administrative file may remain shielded by a broad presumption of confidentiality under Regulation 1049/2001. And when the claimant finally turns to the disclosure mechanisms established by the Damages Directive, the requirements of necessity, proportionality, subsidiarity and the protection afforded to different categories of evidence may render access procedurally complex, costly and time-consuming.

None of these safeguards is objectionable in isolation. Indeed, each pursues a legitimate objective. The difficulty lies in their cumulative operation. Safeguards that appear reasonable when viewed separately may, when combined, create a significant informational bottleneck for victims seeking to exercise rights that EU law expressly recognizes.

The difficulty therefore lies not in any one of these mechanisms, but in their cumulative operation. Safeguards that appear reasonable when viewed separately may, when combined, create a significant informational bottleneck for victims seeking to exercise rights that EU law expressly recognizes.

The Commission's informational monopoly

The argument is not that victims should enjoy unrestricted access to the Commission's administrative files. They should not. Confidentiality matters. Business secrets matter. The protection of leniency programs matters. So does the effectiveness and integrity of public enforcement. None of this is in dispute.

The difficulty lies elsewhere.

The Commission is not simply one holder of information among many. In major cartel investigations, it is typically the institution that possesses the most complete factual record of the infringement. It investigates the conduct, gathers the evidence, determines the scope of the infringement, decides what information is included in the published decision, assesses confidentiality claims, controls the timing of publication and, when access is requested under Regulation 1049/2001, decides whether the underlying administrative file should remain inaccessible.

That concentration of informational control is not problematic while the investigation is ongoing. It is an inevitable consequence of effective public enforcement.

The question is whether it remains equally justified once the investigation has ended and the infringement decision has become final.

Interestingly, the Directive’s regime on access to evidence points in a different direction. Rather than treating all evidence contained in a competition authority's file as equally deserving of protection, it carefully differentiates between categories of evidence. Leniency statements and settlement submissions receive absolute protection. Other documents prepared specifically for the investigation enjoy only temporary protection. Pre-existing documents, by contrast, remain in principle capable of disclosure, subject to judicial assessment of necessity, proportionality and the protection of confidential information.

The legislative message is therefore clear: not everything contained in a competition authority's file deserves the same degree of protection.

Against that background, the practical effect of the Commission's approach under Regulation 1049/2001 becomes difficult to ignore. Once the general presumption is triggered, the whole administrative file may effectively be treated as confidential, without any meaningful consideration of whether specific documents should be treated differently or whether partial access could adequately protect the interests at stake. This is precisely the position adopted by the Commission in Creditell.

The consequence is not merely reduced transparency. Years after the conclusion of the investigation, much of the factual record may remain beyond the effective reach of victims seeking to exercise rights expressly recognized by EU law. Those victims may have access only to a delayed and heavily redacted public decision, while facing considerable practical obstacles to obtaining additional evidence through either Regulation 1049/2001 or the disclosure mechanisms of the Damages Directive.

The case illustrates another, subtler consequence. According to the application, several cartel defendants have themselves relied before the national court on selected documents originating from the Commission's administrative file in support of their defense, while the claimant remains unable to obtain access to the broader evidentiary context from which those documents are drawn.

The problem is therefore not one of absolute secrecy. Information already circulates from the Commission's file into private litigation. The difficulty is that its circulation may be selective, fragmented and uneven. That asymmetry can affect not only the parties' ability to present their case, but also the courts' understanding of the infringement itself.

In that sense, the Commission's administrative file risks becoming an evidentiary blind spot in follow-on litigation.

The question raised by Creditell is therefore both modest and fundamental. Can a system that expressly seeks to facilitate effective private enforcement continue to accept that the institution responsible for investigating an infringement retains an almost exclusive monopoly over its factual record long after the public enforcement process has come to an end?

Beyond EnBW (C-365/12P)?

Nothing in this contribution suggests that EnBW was wrongly decided. The Court of Justice had compelling reasons to prevent Regulation 1049/2001 from becoming a backdoor into competition investigations and to protect the effectiveness of public enforcement. The general presumption recognized in EnBW responded to that concern.

The more difficult question is whether the assumptions surrounding that jurisprudence remain unchanged.

They do not.

Since EnBW was decided, EU competition law has evolved significantly. Private enforcement is no longer a marginal complement to public enforcement but an integral part of the enforcement system. The Damages Directive has established a European framework for judicial disclosure aimed at addressing information asymmetry. National courts now routinely adjudicate complex follow-on actions. At the same time, the case law on publication has increasingly recognized that victims have a legitimate interest in obtaining information about infringements and that Article 30 of Regulation 1/2003 requires publication within a reasonable time.

The legal environment surrounding EnBW has therefore changed substantially, even if the judgment itself has not.

The applicant does not ask the General Court simply to choose between transparency and confidentiality. Nor does it challenge the legitimacy of protecting genuinely confidential information. Rather, it questions whether a general presumption of confidentiality can continue to operate as a practical barrier to access where the investigation has long been concluded, the infringement decision has become final, the requested documents have been specifically identified and access is sought for the purpose of exercising the right to compensation recognized by EU law. The application further argues that the Commission transformed a rebuttable presumption into a blanket and effectively irrebuttable refusal by failing to undertake any genuine case-by-case assessment or balancing of interests.

At the same time, the case raises a parallel question concerning publication. If Article 30 of Regulation 1/2003 imposes a genuine obligation to publish infringement decisions, can that obligation effectively remain suspended for almost a decade simply because confidentiality disputes remain unresolved?

Neither question requires abandoning legitimate confidentiality protection. But confidentiality does not necessarily require treating the administrative file as a single, undifferentiated body of inaccessible material, nor can it justify postponing publication indefinitely.

Ultimately, the issue is not whether EnBW should be overruled, but whether its general presumption continues to strike the appropriate balance in an enforcement system that has changed profoundly since that judgment was delivered.

Creditell offers the General Court an opportunity—not necessarily to abandon the existing framework—but to recalibrate it in light of that new reality.

How should information gathered through public enforcement circulate into private enforcement?

The answer, at present, is not entirely satisfactory.

The solution is not unrestricted access to Commission files, the abandonment of confidentiality or the creation of a European-style discovery system detached from the carefully calibrated framework established by the Damages Directive. But neither should confidentiality become an end in itself, or the mere inclusion of information in a Commission investigation file place it beyond meaningful reach long after the investigation has ended.

The same applies to publication. Article 30 of Regulation 1/2003 is not a symbolic obligation. If publication is one of the mechanisms through which the results of public enforcement become available for private enforcement, it cannot lose much of its practical value through excessive delay.

More broadly, the dispute exposes the relationship between three different mechanisms through which information generated by public enforcement becomes available for private enforcement: publication of infringement decisions, public access to Commission documents and judicial disclosure of evidence before national courts.

Each of those mechanisms pursues legitimate but different objectives. The challenge is not to maximize one at the expense of the others, but to ensure that, taken together, they provide a coherent framework capable of reconciling effective public enforcement with effective judicial protection.

The General Court is unlikely to rewrite the law of access to Commission files in Creditell. Nor should it.

But it does have an opportunity to clarify how those different regimes should interact in a legal landscape profoundly transformed by the emergence of modern private enforcement.

The point is not to disclose more for the sake of disclosure. It is to ensure that the information generated through public enforcement can effectively perform the function that EU competition law increasingly assigns to it: making the right to compensation a practical reality rather than a merely theoretical one.