On 4 April 2012, the High Court handed down its ruling on the application by National Grid for disclosure of documents that may contain leniency material (National Grid Electricity v ABB, others). The National Grid requested disclosure of these documents for the purpose of its follow-on damages claim resulting from the European Commission's decision on the gas insulated switchgear cartel.
Applying the balancing test set up in the Pfleiderer judgment of the ECJ (C-360/09 Pfeiderer AG v Bundeskartellamt, 14 June 2011), the High Court ordered disclosure of limited parts of the confidential version of the Commission's decision as well as to parts of the replies to the information requests. Both contained information provided to the Commission as part of a leniency application.
The judgment refers in detail to the principles laid down in Pfleiderer and confirms that they apply regardless of whether the materials were produced in the context of a leniency application to a national competition authority or for the Commission's leniency programme. In Pfleiderer, the ECJ ruled that there is no absolute bar against the disclosure of leniency material provided in the context of the Commission's leniency application and it is for national courts, on the basis of their national law, to determine on a case-by-case basis whether access is granted or refused. In doing so, national courts should balance the need to protect the leniency regime with the right to effective compensation of victims in the particular case.
Accordingly, the High Court carried out the balancing exercise prescribed in Pfleiderer and balanced the need to protect the leniency regime against the right to effective compensation of victims of the infringement in the particular case. In doing so, the High Court first rejected the defendants' allegation that leniency applicants had a legitimate expectation that leniency materials would be protected. The High Court then assessed whether the disclosure would place leniency applicants in a worse position than parties who did not cooperate with the Commission. The High Court found that this was not the case. Furthermore, the High Court accepted that there could be some deterrent effect on potential leniency applicants but concluded that this was not sufficiently strong to influence a whistleblower. Subsequently, the High Court considered whether it was proportionate to order some limited disclosure taking into account the difficulties of a claimant to obtain information from other sources and the relevance of the leniency material in this case. With regard to the request for disclosure of the Commission's decision, the High Court also took into account that the findings in the decision were likely to be binding on the High Court. The High Court ordered the disclosure of both selected paragraphs of the decision and replies to the request of information, to those individuals within a pre-agreed confidentiality ring.
This judgment illustrates how English courts apply the Pfleiderer balancing test and what specific factors may be taken into account by a national court in a particular case. The question remains how this balancing exercise will be carried out in other jurisdictions and whether action at the Commission level will take place to secure a coherent application of these principles across the EU.