On 4 April 2012, the English High Court issued an order in a pending private damages claim arising out of the gas-insulated switchgear (GIS) cartel case, further to which it has granted the claimants access to a limited set of materials produced by the defendants in leniency applications made before the European Commission.

In 2007, the European Commission fined a group of companies for their participation in a cartel in the GIS market. Following that decision, National Grid, a large customer of the addressees of the decision in the UK, brought a damages action before the High Court and requested access to a wide array of documents produced during the course of the Commission's investigation, including leniency submissions made by a number of the defendants.

In its 2011 Pfleiderer judgment (see VBB on Competition Law, Volume 2011, No. 6, available at www.vbb.com), the European Court of Justice (ECJ) ruled, in response to a request for a preliminary ruling from a German court, that national courts must weigh, on a case-by-case basis, the benefits of releasing leniency documents from national investigations to damages claimants against the potential chilling effect that this could have on national leniency programmes. The German court, in applying this judgment, declined to grant a claimant access to the confidential versions of the requested documents. 

In applying the Pfleiderer judgment, and after having received observations from the European Commission as amicus curiae in accordance with Article 15(3) of Regulation 1/2003, the High Court has reached a different conclusion, deciding that a limited set of leniency materials should be disclosed by the defendants. These materials comprise extracts from leniency statements made by the defendants that were reproduced in the confidential version of the Commission's decision as well as in the defendants' responses to requests for information issued by the Commission. Of particular importance to the High Court was the fact that the materials were largely focused on explaining the meaning of often cryptic terms used in contemporaneous documents which had already been disclosed in the litigation before the Court. As a result, the documents were expected to be highly relevant to the litigation, while still being very narrow in scope.

This is said to be the first time a leniency applicant, defendant in a damages action, is required to disclose leniency documents submitted to the European Commission.

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