On 29 November 2012, the President of the General Court of the European Union, Judge Marc Jaeger, handed down an interim order suspending the Commission's decision to share with an English court, currently reviewing a damage claim, confidential information that the Commission had received in the course of its switchgear cartel investigation.
In January 2007, the Commission had fined eleven companies, including Mitsubishi, Toshiba, Alstom, Areva and Siemens, a total of € 750 million for having participated in a cartel between 1998 and 2004 on the gas insulated switchgear market (see previous issue of the Competition Newsletter). Following the Commission decision, several companies brought damage claims against the members of the cartel before national courts. National Grid Electricty plc ("National Grid"), in particular, launched proceedings before the High Court of England and Wales (the "High Court") on the ground that it had excessively overpaid for its gas insulated switchgear purchases from the cartel members, seeking £249 million in damages. In the process, National Grid sought the disclosure of certain documents related to the Commission's investigation, amongst which include the response of Alstom to the Commission's statement of objections. By letter of 13 July 2011, the High Court requested from the Commission access to these documents.
On 26 January 2012, the Commission accepted to disclose the requested documents, assured by the High Court that a "confidentiality ring" would ensure that the confidential information would remain safe. This "confidentiality ring" was established by order of the High Court between lawyers for the companies and aimed at protecting the confidential information contained in the documents provided to the parties to the High Court proceedings. Alstom challenged before the General Court this decision of the Commission to disclose the documents. In parallel, in an application for interim relief, Alstom sought the suspension of operation of the Commission's decision in order to prevent the disclosure of the documents until the General Court has taken a decision on the main action, asserting that these documents contained professional secrets.
The President of the General Court carried out a thorough examination of the application for interim measures, applying the well-established requirements for the granting of interim relief, namely that the order must be justified prima facie, in fact and in law, and that it is urgent insofar as, in order to avoid serious and irreparable harm to the applicant's interests, it must be made and produce its effects before a decision is reached in the main action. In the present case, the General Court examined the prima facie case and the urgency requirements, and it also weighed up the interests involved.
In weighing up the applicant's interest in obtaining the interim measures sought against the interest in immediately enforcing the contested decision, the President of the General Court examined, more specifically, whether the annulment of the decision by the Court when ruling on the main application would allow the situation which would have been brought about by its immediate operation to be reversed, and, conversely, whether suspension of its operation would prevent the decision from being fully effective in the event of the main application being dismissed. The President considered that the interest in obtaining the interim measures must prevail, particularly as the grant of the suspension of operation requested amounted to no more than maintaining, for a limited period, the status quo which existed for several years. Further, Alstom only objected to the transmission of the confidential version of the disputed documents. The suspension of operation of the contested decision would not preclude the Commission from adopting a new decision permitting the transmission of the non-confidential version of the documents at issue while awaiting the General Court's ruling on the action for annulment in the main proceedings. Thus, the proceedings before the High Court could to a certain extent be pursued.
Turning to the urgency of protecting the applicant from serious and irreparable harm, the President of the General Court noted that there would be a risk that the applicant's fundamental right to an effective remedy, guaranteed by Article 6 of the ECHR, would be jeopardised if the Commission was permitted to provide the information to the High Court before a ruling was made on the main action. The President concluded that it was clearly urgent to grant the interim measures requested.
The President of the General Court then considered the prima facie condition. He recalled that this condition is satisfied where at least one of the applicant's pleas in law for interim measures appears, prima facie, to be relevant. Additionally, the plea must not be unfounded, in that it reveals the existence of difficult legal issues the solution to which is not immediately obvious and therefore calls for a detailed examination that cannot be carried out by the judge hearing the application for interim measures. Such legal issues must be the subject of the main proceedings, or where the discussion of such issues by the parties reveals that there is a major legal disagreement whose resolution is not immediately obvious.
Having examined the circumstances of the case, the President of the General Court concluded, inter alia, that it was not unconceivable that the General Court, when ruling on the main application, would question whether the precautions taken by the Commission to fulfil its duty under Article 339 TFEU on professional secrecy were sufficient, or whether it ought to have carried out a more detailed assessment of the arrangements proposed by the national court to protect the confidentiality of the information requested. In going on to consider the "confidentiality ring", the President noted that this consisted of 92 people, including external lawyers, in-house counsel, IT support staff and secretaries. He was unconvinced that this would provide adequate protection to the confidentiality of the information, considering it "neither immutable nor restricted to [lawyers]". Further, according to the President, the present case raises "novel questions of law", which could not, prima facie, be considered as of no relevance, and their resolution deserved thorough examination within the main proceedings. Therefore, there was a prima facie case.
In view of the foregoing, the President of the General Court decided to order that the operation of the Commission's decision be suspended insofar as the decision concerns the transmission to the High Court of the confidential version of Alstom's reply to the statement of objections.
The ruling concerned only the interim order, and a full review of Alstom's action for annulment is forthcoming. This order for interim relief is the latest in a recent series of litigation involving the private enforcement of competition law, such as the recent order granted to Akzo Nobel in November 2012 which prevented the publication of a more lengthy non-confidential version of the Commission decision in the bleaching chemicals cartel (see previous issue of the Competition Newsletter).
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