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
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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