European Union: Commission Publishes Opinion On Disclosure Of Documents In National Damages Case

On 28 July 2014, the European Commission published an opinion on the disclosure of documents created in the course of a Commission investigation. The opinion, adopted in May 2014, follows a question by the United Kingdom's High Court in a private damages claim against MasterCard, whose multilateral interchange fee system was found to be in breach of Article 101 TFEU by a Commission Decision in 2007.

In 2011 in the Pfleiderer case, the Court of Justice of the European Union ("ECJ") held that it is for national courts to determine, on a case by case basis, whether leniency materials should be disclosed in damages proceedings (see VBB on Competition Law, Volume 2011, No. 6, available at www.vbb.com). It clarified this rule further in Donau Chemie in 2013 (see VBB on Competition Law, Volume 2013, No. 6, available at www.vbb.com).

In the course of damages litigation against MasterCard, the claimants asked the High Court to order the disclosure of the documents created in the course of the Commission's investigation. The Court considered that the documents at stake did not concern leniency materials within the meaning of the above-mentioned case law, but rather other materials which were voluntarily provided to the Commission, such as replies to the Statement of Objections. The High Court therefore sought the Commission's view on the disclosure of the requested documents pursuant to Article 15(1) of Regulation 1/2003, according to which national courts may ask the Commission for its opinion on questions concerning the application of EU competition rules.

In particular, the High Court asked whether the Commission considers that the principles established in Pfleiderer extend beyond leniency materials and are applicable to: (i) materials provided under the notification regime in force prior to Regulation 1/2003; and (ii) any materials voluntarily provided to the Commission. The High Court also sought the Commission's views on whether different considerations arise when assessing the disclosure of this kind of material, and on whether measures should be taken to protect confidential information.

In its opinion, the Commission reviewed the ECJ's case law on the disclosure of documents in national damages proceedings, stating that this case law applies to any materials and that, therefore, it is for national courts to weigh up interests justifying disclosure of information and the protection of such information.

Regarding the disclosure of materials provided when notifying an agreement under the notification regime in force prior to Regulation 1/2003, the Commission took the view that access to such documents cannot be refused by referring to a negative impact on the effectiveness of competition policy, since the notification system at issue has long ceased to have effect.

Regarding materials voluntarily provided to the Commission, including replies to a Statement of Objections, the Commission considered that it is for the national court to assess whether there are overriding reasons for refusing disclosure of such documents. The Commission added that the disclosure of replies to a Statement of Objections should not be considered liable to deter undertakings from cooperating with the competition authorities, which is often one of the main grounds on which disclosure might be refused.

In relation to confidentiality, the Commission reiterated that business secrets should be protected by national courts. In the present case, the Commission emphasised that documents created in the course of the investigation, both by the Commission and by MasterCard, quote directly from confidential information provided by banks, merchants and other third parties. The Commission expressed concern about the disclosure of information provided by third parties that is confidential vis-à-vis MasterCard specifically. In particular, the Commission stated that merchants might object to sharing some information that they provided to the Commission with the claimants in the national case, who might also be their competitors. For the Commission, the protection of confidential information provided by the national court should be equivalent to that provided at EU level.

Finally, the Commission stated that it had no objection against the disclosure of the confidential version of its infringement Decision, provided that adequate protection is given to business secrets and other confidential information, for example through a confidentiality ring or further redactions of the Decision.

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