On 14 October 2015, the English Court of Appeal ruled on the issue of access by claimants in antitrust damages claims to European Commission's cartel decisions. The Court of Appeal decided that defendants do not have to provide claimants with access to confidential "Pergan information" in the Commission's decision. With this judgment, the Court of Appeal annulled an earlier decision of the High Court.
In recent times, cartel decisions of the European Commissions are usually followed-up by civil damages claims. The plaintiffs in such proceedings often use the Commission's decision to substantiate their claims. Commission's decisions are not published immediately, and not in their entirety, as parts of the decision remain confidential. Which parts of the Commission's decision should remain confidential has become a highly disputed topic in the context of antitrust damages claims. One of the issues is whether information about an alleged infringement which is contained in the recitals of a Commission decision, but which is not established in the binding operative part of the decision, should remain confidential. This information has been called "Pergan information", after the case in which this protection was first recognized. In the Pergan case, the General Court held that as only the operative part of a Commission's decision can be appealed before European Courts, the Pergan information should be redacted by the Commission to safeguard the rights of defence and the presumption of innocence.
In the case at hand, the Commission had issued the air cargo decision on 9 November 2010. While the Commission had not yet published a non-confidential version of the decision, the High Court ordered the defendants to provide a redacted version of the decision to the claimants. On 8 May 2015, the Commission published a non-confidential version of the decision. It turned out that part of the information that was not redacted in the English proceedings was considered confidential Pergan information by the Commission. The question before the Court of Appeal was whether the High Court was permitted to provide claimants with a version of the decision while the confidentiality process before the Commission was still pending, and whether the High Court could provide broader access to Pergan information in the decision than provided by the Commission.
The claimants argued that national civil courts were free to relax the protection provided by the Commission of Pergan information, and substitute it with their own regime. Furthermore, the confidentiality would be sufficiently safeguarded by a confidentiality ring around the parties to the proceedings.
The Court of Appeal decided that national courts cannot depart from the Commission's approach with regard to confidential Pergan information, and should await the assessment of the Commission. The Court of Appeal referred to standing European case law that member states should avoid making decisions that could conflict with decisions contemplated by the Commission. Only where there is "scarcely any risk" of a conflict between decisions of national courts and the Commission, the national courts should proceed.
Furthermore, the Court considered that, when it comes to Pergan information, there is no principled basis to permit national courts to allow a claimant in a damages action wider access to information than a party could obtain from the Commission. Also, the protection of information on the basis of Pergan is not limited to redacting the names of parties that are only mentioned in the recitals of a decision. Other information in a decision which cannot be challenged before European Courts should be protected.