The Arnhem District Court recently had to rule on a
request to orderTenneT,
the operator of the Dutch electricity grid, to make available
certain documents relating to the damage suffered by it as a result
of the Gas Insulated Switchgear cartel. In 2007, the European
Commission fined 11 groups of companies over EUR 750
millionfor participating in a cartel for gas
insulated switchgear
projects.1TenneTlaunched legal action against cartel participants ABB and
Alstom to recover the damages it suffered as a result of this
cartel. In response, the cartel participants ordered access to
certain ofTenneT's
documents but were, however, out of luck: the court rejected their
petition.2
The Court first reiterated that Article 843a of the Dutch Code
of Civil Procedure (DCCP) does not provide unrestricted access to
all documents. In response to the document request made,
TenneT introduced a multitude of documents to the
proceedings, none of which overlapped with the documents requested,
and stated that the other documents had been lost over time. This
was supported by a statement made by TenneT's archives
manager.
The Court held that TenneT had sufficiently
demonstrated that it had no further documents in its possession.
According to the Court, the fact that no more documents were
available should not have come as a total surprise, since there is
a statutory duty to keep documents for seven years only and almost
all documents dated from before 2005.
Footnotes
1. See Case COMP/F/38.899 - " GAS INSULATED
SWITCHGEAR of 24 January 2007. The European Commission re-adopted a
decision fining Mitsubishi Electric Corporation and Toshiba
Corporation for their participation in a cartel on the markets for
gas insulated switchgears, after part of the original decision (see
IP/07/80) was annulled by the European General Court for a breach
of equal treatment in the setting of the two companies'
fines (cases T-113/07 and T-133/07). See the European
Commission's press release of 27 June 2012, IP/12/705.
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