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CJEU: NCAs may share leniency statements and settlement submissions with prosecutors, subject to strict limits; plus EU mergers and State aid updates (30 October 2025)

Published on: 30 October 2025

Published by a LexisNexis Competition expert
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  • Antitrust
  • Mergers
  • State aid
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Article summary

Court of Justice confirms NCAs can share leniency and settlement materials with prosecutors, subject to constraints

The Court of Justice has delivered its judgment in Case C-2/23, FL und KM Baugesellschaft and S AG, a national reference from Austria addressing whether EU competition law bars national competition authorities from sending leniency statements and settlement submissions obtained in cartel proceedings to public prosecutors for use in criminal investigations. The Court concluded that such transfers are compatible with Article 101 TFEU, provided they do not compromise the effectiveness of EU competition law, and stressed that access to these documents in criminal proceedings must remain strictly circumscribed.

Background

The case concerns an Austrian construction cartel. The Federal Competition Authority (BWB) imposed fines on the participating companies. The applicant in the main proceedings received a reduction on account of leniency. The file was subsequently transmitted to the public prosecutor for the criminal investigation...

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