National Grid Electricity Transmission Plc v ABB Ltd & Ors

In a follow-on competition damages action, documents obtained from the European Commission’s file may be ordered to be disclosed under domestic rules where no supervening EU-law rule prevents disclosure. Confidential information may be protected by a confidentiality ring. The principle of equivalence prevents refusal of disclosure merely because the claim arises under EU competition law. Article 15 requests to the Commission need not replace ordinary disclosure of documents held by parties. Applications concerning possible leniency material require a case-specific balancing exercise and may be adjourned for fuller submissions.

National Grid Electricity Transmission Plc brought a follow-on damages claim against 23 companies after the European Commission found an infringement involving a cartel in gas insulated switchgear. It sought disclosure of documents obtained by ABB and Siemens from the Commission’s file, the confidential version of the Commission’s decision, and documents potentially containing leniency material.

The defendants relied on EU confidentiality and leniency principles, the Commission’s access-to-file rules, and the French blocking statute. The central issues were whether disclosure should be ordered, whether an Article 15 request to the Commission was necessary, and how Pfleiderer affected the applications involving possible leniency material.

1. Access-to-file documents. ABB and Siemens were ordered to disclose documents originating from Alstom and Areva which they had obtained through access to the Commission’s file. Disclosure was confined to the proceedings and protected by the domestic restriction on use of disclosed documents, together with a confidentiality ring. Concerns about public distribution under Regulation 1049/2001 did not apply to protected disclosure between parties in English proceedings.
2. Equivalence. The English court had to apply its procedural rules consistently with EU law. In the absence of a supervening EU objection, refusing disclosure merely because the claim was effectively for breach of an EU statutory duty would infringe the principle of equivalence recognised in Courage and Crehan (Case C-453/99).
3. Article 15 requests. The court ordered a request under Article 15(1) of Regulation 1/2003 for responses to statements of objections and information requests held by the Commission. It held that the mechanism did not need to be used to obtain documents held by parties where ordinary domestic disclosure was available.
4. Leniency material. In the light of Pfleiderer (Case C-360/09), access to leniency-related documents required a case-by-case weighing of the competing interests protected by EU law. The amended application was raised too late for determination. That part of the application was adjourned to allow full submissions from the parties and the Commission.