Emerald Supplies Ltd & Ors v British Airways Plc & Ors

A national court may disclose a confidential European Commission infringement decision within a tightly controlled confidentiality ring where this protects confidentiality, trade secrets and the presumption of innocence while allowing effective preparation of domestic proceedings. The duty of sincere co-operation does not prevent interlocutory case-management decisions where the court is not purporting to determine matters reserved to the European Commission or European courts. A failed or unworkable redaction process may justify revisiting an earlier interlocutory order under CPR 3.1(7), although that power is exceptional. Pre-existing documents supplied during a leniency procedure should not be treated as equivalent to self-incriminating leniency statements. Legal professional privilege remains protected.

The claimants, numerous businesses alleging losses from an air-freight cartel, sought access to the European Commission’s 9 November 2010 infringement decision. The decision had been heavily redacted following prolonged attempts by the Commission and the parties to agree a non-confidential version. The claimants applied to review an earlier order and sought disclosure of the decision to the parties within a confidentiality ring. The issues included sincere co-operation with the European Union institutions, the effect of Pergan Hilfsstoffe Fur Industrielle Prozesse GmbH v Commission [2007] ECR II-4225, leniency material, legal professional privilege and the court’s power to revisit its order.

1. Application granted in substance. The court ordered disclosure of the unredacted Commission decision to all parties within a confidentiality ring, subject to removal of leniency material and material protected by legal professional privilege. The claimants were restrained from using the decision to commence further proceedings without permission.
2. The duty of sincere co-operation under Article 4(3) TEU required national courts to avoid conflicting final decisions, but did not prevent the court from examining issues and making interlocutory disclosure decisions before the European process was complete. Disclosure within the confidentiality ring did not determine the matters reserved to the Commission or the European courts.
3. The court was entitled to review its earlier order under CPR 3.1(7). The power was exceptional and should not become a backdoor appeal or encourage repeated applications. The wholesale failure of the agreed redaction procedure was sufficient justification for revisiting the order.
4. Pergan protected the presumption of innocence, professional secrecy and confidentiality in relation to a non-addressee against whom no infringement finding had been made. It did not prevent the national court from using familiar domestic procedures, including a confidentiality ring, to provide equivalent protection. A confidentiality ring could also protect parties facing possible criminal consequences and business confidentiality.
5. The court accepted the claimants’ approach that leniency protection extended to material created for the leniency application, but not pre-existing contemporaneous documents. The court also accepted that privileged material could be redacted and would determine any dispute about privilege itself.

First-instance interlocutory decision. The judgment states that an earlier order concerning the Commission decision had been stayed by Lord Justice Jackson on 14 August 2014, pending consideration of this judgment.