High Court rules on disclosure of Commission leniency documents

09/05/12

National Grid Electricity Transmission Plc v ABB Ltd and others

The High Court recently handed down an important ruling on the disclosure, in proceedings before the domestic courts, of documents submitted to the Commission in the context of its leniency policy.

National Grid sought disclosure of such leniency material from the ABB and Siemens defendants to its follow-on claim for damages based on the Commission's Gas Insulated Switchgear decision.  Before hearing the application, the High Court invited the Commission to submit observations in relation to such disclosure.  On the basis of those observations and having heard the parties' submissions, the Court held that the question whether or not leniency material falls to be disclosed in national proceedings is not simply a question of applying the relevant principles contained in the CPR.  Principles of EU law are engaged.  In particular, the ECJ's ruling in Case C-360/09 Pfleiderer applies such as to require the national court to conduct a balancing exercise, weighing the interest in disclosure as against the need to protect an effective leniency programme.  This process has similarities to the task of the court where a claim to public interest immunity is raised.  The exercise must be conducted on a case-by-case basis, taking account of all relevant factors and it will generally be appropriate for the court to inspect the documents and consider them individually before making a decision.  In the circumstances of this case, relevant factors taken into account by the Court included whether disclosure would increase the leniency applicant's exposure to liability as compared with the liability of parties which did not cooperate with the Commission, the potential deterrent effect of a disclosure order on future leniency applicants, the degree of relevance of the documents and whether the information is available from other sources.

The judgment is here.