Further evidence - Breach of competition rules - European Commission issuing redacted judgment

National Grid Electricity Transmission Plc v Abb Ltd and others: Chancery Division (Mr Justice Roth): 4 July 2011

The claimant electrical company had successfully brought an action for breach of competition rules under ­article 101 of the Treaty of the Functioning of the European Union 2008 against the defendant companies.

The action concerned a cartel that the defendants had operated regarding the supply of electrical equipment used in electricity grids. As customary, the published version of the European Commission’s decision (the decision) had redacted certain passages and information on the grounds of commercial confidentiality.

The decision imposed fines in excess of €750m.

Of the defendants, one group of five organisations (ABB) was granted leniency by the commission. It was common ground that the redacted passages in the decision contained matters that could be very relevant to the claimant in seeking damages for losses allegedly suffered by reason of the cartel.

The claimant sought disclosure of documents in order to assess its losses fully as a result of the actions of the cartel.

The claimant sought disclosure of documents obtained by access to the Commission's file. ABB and a second group of companies, S, contended that: (i) disclosure of the documents obtained by access to the file would undermine the ongoing investigation concerning the cartel; (ii) it would also impair future investigations, as it would make parties less willing to submit documents and cooperate with the commission, and; (iii) that it would be more appropriate for the documents sought to be obtained by way of a request under article 15(1) of Commission Regulation (EC) No 773/2004 to the commission rather than by way of disclosure.

The claimant further sought ­disclosure of the confidential version of the decision and of ABB documents including the leniency ­documents. In determining the issue, consideration was given to the case of Pfleiderer, Case-360/09.

The court ruled: (1) the risk to an ongoing investigation would be directly related to the public distribution of the relevant documents. That would have no application to what was being sought by the claimants in the present case. Were it possible that the commission might reopen the investigation into the cartel in such a way that disclosure of the documents could impair the investigation, it was impossible to see how disclosure between parties to English court proceedings, with the potential for the added protection of a confidentiality ring, could undermine such an investigation.

It was important to note the requirements of Civil Procedure Rule 31.22 regarding the restrictions on the use of documents. Further, as disclosure would be only to the other parties in English court proceedings, and with the extra safeguard of a confidentiality ring, disclosure would not impair future investigations by making parties less willing to submit documents and cooperate with the commission.

Furthermore, on the facts, it would be neither necessary nor appropriate (see [21], [22], [24], [25] of the judgment).

Regarding the application to disclosure of documents obtained by access to the file, the application for disclosure would be allowed. In the circumstances, additional time would be given for them to be identified (see [28] of the judgment).(2) It was not clear whether the ECJ had in mind, in Pfleiderer, the situation where leniency documents were submitted to the commission where the article 15 process was available, as opposed to an application obtained where art 15 did not apply.

No party, however, had objected to the idea of the commission making submissions on that issue. In the circumstances, it would be inappropriate to determine the question without giving the parties a fuller opportunity to consider the issue (see [36] of the judgment).

The question of disclosure of the confidential version of the decision and of ABB documents including the leniency documents would be adjourned (see [37] of the judgment).

J Turner QC and D Beard QC (instructed by Berwin Leighton Paisner) for the claimant; M Hoskins QC and Sarah Ford (instructed by Freshfields Bruckhaus Deringer) for the first to fifth defendants; D Jowell QC (instructed by Hogan Lovells International) for the sixth to ninth, eleventh, 12th, 22nd and 23rd defendants; M Brealey QC and M Demetriou (instructed by Clifford Chance) for the 13th to 21st defendants; K Bacon (instructed by Shearman & Sterling (London)) for the tenth defendant.