For nearly a decade, the Austrian “construction cartel proceedings” have occupied the Austrian judiciary. The scale of the case is unprecedented: hundreds of suspects, numerous leniency applications, extensive dawn raids, witness examinations, diversion agreements, and court judgments — all against the backdrop of a close interconnection between criminal law and competition law.
A key legal dispute was referred to the Court of Justice of the European Union (CJEU). In essence, the question was whether leniency statements submitted under competition law may be transmitted, by way of mutual administrative assistance, to the criminal case files of the Austrian Public Prosecutor’s Office for Economic Crimes and Corruption (WKStA) — and whether such statements could then be made accessible to victims and private parties to the proceedings.
In its judgment of 30 October 2025 (C-2/23), the CJEU provided important clarifications:
- Leniency programmes are essential for uncovering cartels — their protection must not be undermined.
- Injured parties and private claimants must not be granted access to leniency statements.
- Administrative cooperation with criminal prosecution authorities is not precluded under EU law, but is subject to strict limitations and a balancing of interests.
In the preliminary ruling proceedings, defence counsel from Petsche Pollak attorneys at law acted as lead representatives for two construction companies. In their ecolex article, they analyse the key protective mechanisms identified by the CJEU. However, the precise scope of defendants’ rights of access to files and the concrete level of protection afforded to sensitive documents remain unresolved.
Conclusion
Without legislative clarification, there is a tangible risk of a significant chilling effect on potential leniency applicants – with noticeable consequences for the effective enforcement of competition law.
