Domestic Courts must redact to protect the Presumption of Innocence

14/10/15

On 10 October 2015 the Court of Appeal (Elias and Gloster LJJ and Sir Bernard Rix) handed down judgment in Air Canada & Ors v Emerald Supplies Limited & Ors, an appeal from the judgment of Peter Smith J in the long-running Air Cargo competition damages litigation.

The appeal concerned how domestic courts should give effect to the principles set out by the General Court in Case T-474/04 Pergan Hilfsstoffe für industrielle Prozesse GmbH v Commission [2007] ECR II-4225. In that case the General Court held that the presumption of innocence in Article 48 of the European Charter of Fundamental Rights precluded the publication of any formal finding or even any allusion to liability for an infringement in a Commission decision unless the person concerned had enjoyed all the usual guarantees accorded for the exercise of the rights of defence in the normal course of proceedings resulting in a decision on the merits of the case.

The Claimants in the Air Cargo litigation sought disclosure from the Defendant, BA, of the confidential version of the Commission's decision in Case 39258 Airfreight. Addressee and non-addressee airlines sought redaction of material in the decision which they contended fell within the principle in Pergan. Peter Smith J directed that an unredacted version of the Commission decision should be disclosed to members of a confidentiality ring which included the claimants’ legal representatives and economic advisers. It was this direction which was challenged on appeal.

The Court of Appeal allowed the appeal, holding that the domestic court was obliged to ensure the same protection to Pergan material as is accorded at EU level, and that it was insufficient to disclose such material into a confidentiality ring.

The judgment is here.