The EU competition litigation landscape continues to evolve and there have been two significant recent developments. First, new legislation aimed at assisting private damages claimants in the EU has nearly been finalised. An agreement in principle between the various institutions was reached (and endorsed by EU Member State representatives on 26 March 2014) and this now only needs to be formally approved by the European Parliament and the Council of the EU. The text as agreed includes specific provisions ensuring discovery/disclosure can take place, protecting whistleblower evidence from discovery (but not pre-existing documents), providing for the joint liability of defendants, ensuring full compensation for harm (with the possibility of a pass-on defence) and providing for a minimum limitation period. The overall effect should be further to increase the amount of private competition litigation in EU Member State courts.

The second development was a 27 February 2014 judgment of the EU’s highest court (the Court of Justice; ECJ), which overturned the finding of the junior EU General Court in a case concerning third-party access to cartel documents under the EU’s public transparency regulation (Regulation).

The Regulation provides for a general right of access to EC documents, subject to specific restrictions. So as to assist it in bringing a private damages claim, EnBW (a German energy company) had used the Regulation to request all documents held by the EC in relation to its investigation into a gas insulated switchgear cartel.

The ECJ ruled that the EC may adopt a “general presumption” against disclosure under the Regulation in cartel cases, without carrying out a specific, individual assessment of each document. This presumption may be rebutted by showing that specific documents are either not covered by the presumption, or that there is an overriding public interest in disclosure, but the fact that EnBW’s request was made to assist it in bringing a private damages action was not considered an overriding public interest. In order to rebut the general presumption, potential private damages claimants must establish that access to a particular document is “necessary”.