Air Canada & Ors v Emerald Supplies Limited & Ors [2015] EWCA Civ 1024

“Article 48 Presumption of innocence and right of defence 1. Everyone who has been charged shall be presumed innocent until proved guilty according to law. 2. Respect for the rights of the defence of anyone who has been charged shall be guaranteed.”

“72. The Court would point out that the interest of an undertaking which the Commission has fined for breach of competition law in the non-disclosure to the public of details of the offending conduct of which it is accused does not merit any particular protection, given, first, the public interest in knowing as fully as possible the reasons for any Commission action, the interest of economic operators in knowing the sort of behaviour for which they are liable to be penalised and the interest of persons harmed by the infringement in being informed of the details thereof so that they may, where appropriate, assert their rights against the undertakings punished, and, second, the fined undertaking's ability to seek judicial review of such a decision (Bank Austria Creditanstalt v Commission, paragraph 46 above, paragraph 78). The Court considers that this appraisal applies mutatis mutandis to a decision in which an undertaking is found to have committed an infringement, but proceedings against it are barred by limitation pursuant to Article 1 of Regulation No 2988/74, the Commission being implicitly authorised to take that decision on the basis of the rules laid down by Regulation No 17, provided that it shows a legitimate interest for doing so (Joined Cases T-22/02 and T-23/02 Sumitomo Chemical and Sumika Fine Chemical v Commission [2005] ECR II-4065, paragraphs 60 to 63). 73. However, the application of the case law cited in paragraph 72 above presupposes that the infringement found at least appears in the operative part of the decision and that the decision is addressed to the undertaking concerned so that it may contest that infringement in court. As the Commission itself argues, regardless of the grounds on which such a decision is based, only the operative part thereof is capable of producing legal effects and, as a consequence, of adversely affecting an undertaking's interests. By contrast, the assessments made in the grounds of a decision are not in themselves capable of forming the subject of an application for annulment. They can be subject to judicial review by the Community judicature only to the extent that, as grounds of a measure adversely affecting a person's interests, they constitute the essential basis for the operative part of that measure (order in Case C-164/02 Netherlands v Commission [2004] ECR I-1177, paragraph 21; Case T-213/00 CMA CGM and Others v Commission [2003] ECR II-913, paragraph 186), and if, in particular, those grounds are likely to alter the substance of what was decided in the operative part of the measure in question (see, to that effect, Case T-251/00 Lagardère and Canal+ v Commission [2002] ECR II-4825, paragraphs 67 and 68). 74. In the present case, it follows from the foregoing that, regardless of whether or not the Commission was justified in finding, in the grounds of the peroxides decision, an infringement attributable to the applicant, in the absence of such a finding in the operative part, the applicant did not have standing to bring an action against that decision. Accordingly, an action brought by the applicant against the peroxides decision seeking review by the Court of First Instance of the substance of the disputed information would, in any event, have been inadmissible, even if brought within the time limit provided for in the fifth paragraph of Article 230 EC (see, to that effect, Compagnie maritime belge transports and Others v Commission, paragraph 52 supra, paragraph 150).”

“…general principles and fundamental rights, which are an integral part of the Community legal order, and, in particular, of the principle of presumption of innocence – as reaffirmed in Article 48 of the Charter of Fundamental Rights of the European Union proclaimed in Nice on 7 December 2000 (OJ 2000 C 364, p. 1) …”

“78. The Court considers, further, that, since the Commission's findings relating to an infringement committed by an undertaking are capable of infringing the principle of the presumption of innocence, those findings must, in principle, be regarded as confidential as regards the public, and therefore as being of the kind covered by the obligation of professional secrecy. This principle stands, inter-alia, from the need to respect the reputation and dignity of the person concerned if that person has not been finally found guilty of an infringement … The confidentiality of such information is confirmed by Article 4 (1) (b) of Regulation No 1049/2001, which provides that information, whose disclosure would harm the protection of privacy and the integrity of the individual, is to be protected. Finally, the confidentiality of that information cannot depend on whether, and to what extent, it is of probative value for the purpose of proceedings at national level." (Emphasis added). 79. In that regard, the defendant cannot rely on paragraph 89 of the ruling in Bank Austria Creditanstalt v Commission, paragraph 46 above, given that the Court's appraisal in that part of the ruling does not concern a similar situation to that in the present case, in which the applicant has no possibility of contesting the merits of the assertions relating to it in the peroxides decision (Bank Austria Creditanstalt v Commission, paragraph 46 above, last line of paragraph 78). It is clear from the case law cited in paragraphs 72 and 73 above that the Commission cannot adopt a decision finding an infringement after expiry of the limitation period, where such a finding is not justified by the existence of a legitimate interest and where the undertaking concerned has no possibility of seeking review of that finding by the Community judicature (see also, to that effect, Coca Cola v Commission, paragraph 52 above, paragraph 86).”

“The Commission understands the Court's concern at the delay in publishing a non-confidential version of the Decision. Under the present state of European Union law however, it is not possible for the Commission, within a reasonable timeframe, to override the numerous confidentiality claims made by addressees of the Decision, which prevent publication of a meaningful non-confidential version of the Decision. In this respect, I would refer you to an interim order made by the General Court in Case T-462/12 R, Pilkington Group Ltd v Commission and, on appeal, by the Court of Justice in Case C-278/13 p(R), Commission v Pilkington Group Ltd. The Court of Justice upheld an order made at first instance by the General Court restraining the Commission from publishing a non-confidential version of another cartel decision, the European Courts accepting the applicant's argument that the publication of material over which confidentiality was claimed could cause irreparable harm to the applicant. The determination of whether the material in question is indeed deserving of protection as confidential is a matter that will only be decided in the final judgment.l In the light of the position taken by the Court in Pilkington, the Commission finds it is unable to publish a non-confidential version of the Decision, given the widespread objections to publication on grounds of confidentiality: the addressees would be able to rely on Pilkington to obtain interim measures from the European Courts preventing publication of a non-confidential version of the Decision. The further implication of the Commission's inability to override the addressees' confidentiality claims is that the Commission is unable to explain to the non-addressees the exact context in which they are mentioned in the Decision. The Commission is therefore not in a position to provide the non-addressees with the information necessary for them to make a substantiated application to your Court of the sort that appears to be contemplated by paragraph 8(2)(i) of your Order. The Commission has only been able to confirm, either in writing or orally and without any reference to any paragraphs of the Decision, that the non-addressees are mentioned in the factual part of the Decision. The Commission hopes therefore that you will understand that any applications made pursuant to paragraph 8(2)(i) of your Order by non-addressees of the Decision cannot be substantiated further than a request that any reference to the non-addressee making the application be removed from the Redacted Decision to be prepared pursuant to paragraph 10 of your Order. The Commission would emphasise that, irrespective of the issues raised by Pilkington in relation to the publication of information relating to the addressees of the Decisionit is in any event clear that the names of third parties would have to be redacted from the non-confidential public version of the Decision. This follows from the General Court’s judgment in Case T-474/04 Pergan Hilfsstoffe fur Industrielle Prozesse v Commission … There, the General Court held (at paragraph 76) that the Commission could not publish “even any allusion to the liability of an accused person for a particular infringement in a final decision unless that person has enjoyed all the usual guarantees accorded for the exercise of the rights of defence in the normal course of proceedings resulting in a decision on the merits of the case.”

“MR JUSTICE PETER SMITH: Let me take stock at the moment. I am going to reserve my decision. … What I am going to do now, however, it is appropriate whatever the decision, is I am going to order all parties who have made redactions to the decision, to review their decision and remove such redactions as they think appropriate in the light of the arguments that have taken place today. I am talking about the naming of the non-addressees, I am talking about the over-redaction of the leniency and these things, and they should provide that to the claimants' solicitors within 14 days. The claimants' solicitors, I am afraid, will have the task of collating it all into one master. …….. MISS LESTER: My Lord, could I just one non-addressees' point, that, with respect, gives the claimant exactly what we were suggesting could not happen or should not happen, because it may result in addressees unredacting the names of non-addressees and those names will then go to the claimants in circumstances where we have not had an opportunity to see them. MR JUSTICE PETER SMITH: I thought the non-addressees were all going to be deleted from the decision. MISS LESTER: As I understood what your Lordship said, they are going to be deleted by the Commission, but if your Lordship's order means that – MR JUSTICE PETER SMITH: I am going to follow the Commission on that and delete them from the decision. MISS LESTER: You are going to? MR JUSTICE PETER SMITH: Yes. MISS LESTER: So just to be clear, your Lordship's order does not allow addressees to unredact names of non-addressees? MR JUSTICE PETER SMITH: No. MISS LESTER: Thank you.” (Emphasis added.)

“1. All airlines that have made redactions to the Redacted Decision shall by no later than 4pm on 14 August 2014 review and remove such redactions that they now consider were incorrectly applied to the Redacted Decision, save that in removing any such redactions they shall leave redacted the name of any non-addressee airline or any specific information that would allow the identification of a non-addressee airline mentioned in the Decision other than where the non-addressee airline is referred to in any contemporaneous documents that are part of the European Commission file. 2. The solicitors to Air France-KLM be responsible for collating the amendments to the Redacted Decision and providing an amended version of the Redacted Decision to the Claimant’s Advisers within the Confidentiality Ring and the Court by the date mentioned in paragraph 1, above.” (Emphasis supplied.)

“I should also say that at the start of this hearing I indicated that my decision was going to be that I did not believe the Pergan decision required me to redact the decision at all because I believe the Pergan decision has no application to the unique facts of this case where some parties are already relying on the decision and have brought proceedings. That was not the case in Pergan’s. I will give more detail in that judgment when I handed down.”

"proceedings against anybody else either in these proceedings or fresh proceedings or in any jurisdiction elsewhere without the consent of the courts in this action"

“27. Although the letter was sent in the “spirit of co-operation” between the national courts and the EC there does not with respect to the Commission seem to be much co-operation from it. Despite the fact that it must be self-evident that 4 years even just to consider working out the non confidential part of the Decision is completely unacceptable no steps are being made to speed up that process and no indication is given as to when the whole process will be finalised. 28. As I said in reply to their letter the spirit of co-operation must be a mutual thing but it does not with respect appear to be very mutual. I do not think it is acceptable for these kinds of delays to be imposed on the Courts within this jurisdiction. The events go back some 17 years and I was told at the hearing in March 2014 that it was possible that matters would not be finished within the European system until 2020. These proceedings are already stale as they are already nearly 6 years old and they have not moved beyond close of pleadings. There has been no disclosure, no exchange of witness statements and as will appear below there are apparently restraints on this jurisdiction in the “spirit of co-operation” in coming to decisions which might be at variance with the decisions that the Commission make. 29. Of course there are well established procedures within these courts to protect people’s confidentiality. I have come to the conclusion as I shall set out below that together with restrictions on the claimants’ ability to bring proceedings against anybody other than those already in the Part 20 proceedings without permission of the court provide a more than ample protection of the so-called confidential issues in the Decision”

“they will not make any use of any information obtained from the version of the Decision redacted in accordance with paragraph 8(i) of this Order to commence new proceedings against any person or company whether in this or any other jurisdiction, or use the information contained in the Redacted Decision in any other proceeding save for the present proceedings, the Decision [sic] to commence any proceedings whether within this action or in any other action within this jurisdiction or elsewhere against the parties to this action (including the Third and Fourth Parties) or any Non-Party unless the parties agree or the Court otherwise orders (the “Claimant Undertaking”).” [Emphasis added.]

“The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard to the principle of subsidiarity and to the Member States only when they are implementing Union law.”

“there is….. no public interest in publishing the disputed information that is capable of prevailing over the applicant’s legitimate interest in having such information protected. Pergan, paragraph 80. ”

"Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties. The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. The Member States shall facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardise the attainment of the Union's objectives."

“67. There are a number of reasons for rejecting that submission. First there is no question of coming to a concluded decision that might be in conflict with the EC or the European Court decision. It is accepted that it is not possible to have a final trial within this jurisdiction pending finality of the European process. Equally however it is accepted that it is possible for this court to proceed to examine matters and identify issues in advance of the final trial. In respect of the Decision that exercise will be done under a confidentiality ring. 68. I do not see that there is any potential conflict in that evaluation process as regards decisions that have to be made as opposed to interlocutory determinations as to what items of the Decision should be redacted. I have already observed that the disclosure of the entirety of the Decision within this confidentiality ring will not adversely affect any party that is concerned with the Decision as they are already parties to this action. I have already observed on the absurdity of some parties having full access to the Decision, some having a limited access and some having none at all.”

“71. Thus the following appears to be the position:- 1) The EC is unable to decide on the question of redactions even now, 4 years after the process was started. 2) It will not expedite that procedure to assist (sincerely co-operate with) this Court in deciding issues before it. 3) It has accepted that it is for this Court balancing the rights of the claimants as victims with the rights of the Defendants and the Part 20 Defendants to carry out the exercise. That exercise is to protect the parties’ respective rights. 72. The claimants’ rights are to have the matters brought to trial and tried justly and fairly with all requisite information available to it within the bounds of the rules as to admissibility (such as issues as to privilege and the like). The rights of Defendants as I understand it are that this Court should do nothing that might be inconsistent with the decisions that might be made in the EC and the European Courts in respect of these issues and that they should have confidentiality as regards production of the Decision in part or in whole as one of their rights. The latter right of course is to ensure that their Defence is not unfairly compromised by material being disclosed which they might challenge without having an opportunity to challenge it or matters that are in the Decision should not be put in the public domain when they have not had the opportunity to challenge them because of the damage that might ensue. 73. They are fully protected in the EC as regards the EC’s inability in effect to come to a decision. As regards the situation within this Court they are to my mind fully protected by the confidentiality ring and I have heard nothing from anybody in my view which suggests their rights will be adversely affected by disclosure within the confidentiality ring. I reject therefore Air Canada’s submission that I should view the EC’s letters as indicating that it did not appreciate the extent that an order for disclosure in this Court would undermine their separate applications for redaction which are currently pending before it. I do not see how what I might decide within the confidentiality ring can possibly have an impact on the submissions that have been made to the EC. Self-evidently the EC because of the confidentiality ring will itself not be aware of what decisions are made in this Court so I do not see how there can possibly be any adverse impact. One should avoid a knee jerk reaction as opposed to an analysis of what actually will happen. 74. It must be borne in mind that there has been no mutual assistance as between this Court and the EC; the latter has simply declined to do anything beyond saying that it is unable to do anything whether by speeding up a decision or even making a decision.”

“to ensure that their Defence is not unfairly compromised by material being disclosed which they might challenge without having an opportunity to challenge it or matters that are in the Decision should not be put in the public domain when they have not had the opportunity to challenge them because of the damage that might ensue”

“As regards the situation within this Court they are to my mind fully protected by the confidentiality ring and I have heard nothing from anybody in my view which suggests their rights will be adversely affected by disclosure within the confidentiality ring. See paragraph 73 and also paragraph s 102 and 107 of the judgment. ”

“‘Are the provisions of Community competition law – in particular Articles 11 and 12 of Regulation No 1/2003 and the second paragraph of Article 10 EC, in conjunction with Article 3(1)(g) EC – to be interpreted as meaning that parties adversely affected by a cartel may not, for the purpose of bringing civil-law claims, be given access to leniency applications or to information and documents voluntarily submitted in that connection by applicants for leniency which the national competition authority of a Member State has received, pursuant to a national leniency programme, within the framework of proceedings for the imposition of fines which are (also) intended to enforce Article 81 EC?’”

“25 However, as maintained by the Commission and the Member States which have submitted observations, leniency programmes are useful tools if efforts to uncover and bring to an end infringements of competition rules are to be effective and serve, therefore, the objective of effective application of Articles 101 TFEU and 102 TFEU. 26 The effectiveness of those programmes could, however, be compromised if documents relating to a leniency procedure were disclosed to persons wishing to bring an action for damages, even if the national competition authorities were to grant to the applicant for leniency exemption, in whole or in part, from the fine which they could have imposed. 27 The view can reasonably be taken that a person involved in an infringement of competition law, faced with the possibility of such disclosure, would be deterred from taking the opportunity offered by such leniency programmes, particularly when, pursuant to Articles 11 and 12 of Regulation No 1/2003, the Commission and the national competition authorities might exchange information which that person has voluntarily provided. 28 Nevertheless, it is settled case-law that any individual has the right to claim damages for loss caused to him by conduct which is liable to restrict or distort competition (see Case C-453/99 Courage and Crehan [2001] ECR I-6297, paragraphs 24 and 26, and Joined Cases C-295/04 to C-298/04 Manfredi and Others [2006] ECR I-6619, paragraphs 59 and 61). 29 The existence of such a right strengthens the working of the Community competition rules and discourages agreements or practices, frequently covert, which are liable to restrict or distort competition. From that point of view, actions for damages before national courts can make a significant contribution to the maintenance of effective competition in the European Union (Courage and Crehan, paragraph 27). 30 Accordingly, in the consideration of an application for access to documents relating to a leniency programme submitted by a person who is seeking to obtain damages from another person who has taken advantage of such a leniency programme, it is necessary to ensure that the applicable national rules are not less favourable than those governing similar domestic claims and that they do not operate in such a way as to make it practically impossible or excessively difficult to obtain such compensation (see, to that effect, Courage and Crehan, paragraph 29) and to weigh the respective interests in favour of disclosure of the information and in favour of the protection of that information provided voluntarily by the applicant for leniency. 31 That weighing exercise can be conducted by the national courts and tribunals only on a case-by-case basis, according to national law, and taking into account all the relevant factors in the case. 32 In the light of the foregoing, the answer to the question referred is that the provisions of European Union law on cartels, and in particular Regulation No 1/2003, must be interpreted as not precluding a person who has been adversely affected by an infringement of European Union competition law and is seeking to obtain damages from being granted access to documents relating to a leniency procedure involving the perpetrator of that infringement. It is, however, for the courts and tribunals of the Member States, on the basis of their national law, to determine the conditions under which such access must be permitted or refused by weighing the interests protected by European Union law.”

“The provisions of European Union law on cartels, and in particular Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 101 TFEU and 102 TFEU, must be interpreted as not precluding a person who has been adversely affected by an infringement of European Union competition law and is seeking to obtain damages from being granted access to documents relating to a leniency procedure involving the perpetrator of that infringement. It is, however, for the courts and tribunals of the Member States, on the basis of their national law, to determine the conditions under which such access must be permitted or refused by weighing the interests protected by European Union law.”

“Legal context 3 Paragraph 39(2) of the 2005 Law on cartels (Kartellgesetz 2005) (‘the KartG’) states: ‘Persons, who are not parties to the procedure, may gain access to the files of the Cartel Court only with the consent of the parties.’ 4 Paragraph 219 of the Austrian Code of Civil Procedure (Zivilprozessordnung) (‘the ZPO’) provides: ‘1. The parties may gain access and have made copies and obtain extracts of all of the files relating to their case in the court’s possession (case file), except for draft judgments and orders, minutes of discussions and court votes and written documents concerning disciplinary measures. 2. With the consent of both parties, third parties can gain access in the same way, make copies thereof and obtain extracts therefrom, at their own expense, in so far as this is not precluded by the legitimate overriding interests of another individual or overriding public interests within the meaning of the first sentence of Paragraph 26(2) of the 2000 Law on data protection DSG 2000 [Datenschutzgesetz 2000]. In the absence of such consent, the third party is entitled to access and to obtain copies only in so far as it can adduce prima facie evidence to show that it has a legal interest in so doing....’ …….. The dispute in the main proceedings and the questions referred for a preliminary ruling 5 By judgment of 26 March 2010, the Oberlandesgericht Wien imposed fines totalling EUR 1.5 million on Donau Chemie and Others for infringement, inter alia, of Article 101 TFEU on the market in the wholesale distribution of printing chemicals. By judgment on appeal of 4 October 2010, the Oberster Gerichtshof upheld that judgment of the Oberlandesgericht Wien, which thereby became res judicata. 6 The VDMT was established with a view to representing the interests of its members, which include in particular undertakings in the printing sector. On 3 July 2011, acting pursuant to Paragraph 219(2) of the ZPO, it applied to the Oberlandesgericht Wien for access to the file relating to the judicial proceedings between the BWB and Donau Chemie and Others. The purpose of that application was to gather evidence enabling an assessment to be made, in particular, of the nature and amount of the potential loss suffered by the VDMT’s members due to the infringements committed by Donau Chemie and Others, and to determine whether it was appropriate to bring an action for damages against those undertakings. 7 Relying on Paragraph 39(2) of the KartG, all the parties to the judicial proceedings between the BWB and Donau Chemie and Others in essence refused to consent to the VDMT being granted access to the file. 8 In that regard, the Oberlandesgericht Wien states that, contrary to what is provided for in Paragraph 219(2) of the ZPO, Paragraph 39(2) of the KartG makes no allowance for the court to authorise access to the judicial case file in competition cases without the consent of the parties, even where the party seeking access can demonstrate a legitimate legal interest in having access. In other words, according to the referring court, under the Austrian system, it is the legislature itself which weighed up, on the one hand, the general interest of the federal competition authority in obtaining information and identifying infringements of competition law and, on the other, the interest of third parties in having access to files in order to facilitate their bringing actions for damages. Thus, in that weighing-up, the former interest was given absolute priority, to the detriment of the latter. That court indicates that it follows that, even if only one of the parties to the proceedings has not given its consent, the court, which has no power to weigh up the interests present, is bound not to allow third parties access to the file. 9 The referring court observes that, according to Case C-360/09 Pfleiderer [2011] ECR I-5161, the provisions of European Union law on cartels do not preclude a party from being granted access to documents relating to a leniency procedure involving the perpetrator of an infringement of European competition law. In the absence of binding European competition law rules, it is for the Member States to establish and apply the national rules governing access for persons who have been adversely affected by a cartel to documents relating to a leniency procedure. 10 The Oberlandesgericht Wien observes, however, that the Court, in paragraphs 30 and 31 of Pfleiderer, also stated that, in keeping with the principle of effectiveness, it is necessary to ensure that the applicable national rules do not operate in such a way as to make it practically impossible or excessively difficult to obtain such damages and to weigh the respective interests in favour of, on the one hand, disclosure of the information and, on the other, the protection of that information. That weighing-up exercise can be conducted by the national courts and tribunals only on a case-by-case basis, according to national law, and taking into account all the relevant factors in the case. 11 The Oberlandesgericht Wien accordingly is in some doubt as to the compatibility of Paragraph 39(2) of the KartG with that interpretation of the applicable European Union law, given that that provision precludes the court from proceeding with any weighing-up of the interests present. 12 Moreover, in the light of the reference to the principle of equivalence in paragraph 30 of Pfleiderer, the referring court also wonders whether, although Paragraph 39(2) of the KartG applies in the same manner to any cartel proceedings, be they based on national law or European Union law, that provision is nevertheless contrary to the principle of equivalence, as it does not apply to actions for damages for harm suffered due to infringements committed in other areas of civil or criminal law, those actions being governed more favourably, in terms of access to documents, by Paragraph 219(2) of the ZPO. 13 In those circumstances, the Oberlandesgericht Wien decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling: ‘1. Does European Union law, in particular in the light of the judgment [in Pfleiderer], preclude a provision of national antitrust law which, (inter alia) in proceedings involving the application of Article 101 or Article 102 [TFEU] in conjunction with [Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1)], makes the grant of access to documents before the cartel court to third persons who are not parties to the proceedings, so as to enable them to prepare actions for damages against cartel participants, subject, without exception, to the condition that all the parties to the proceedings must give their consent, and which does not allow the court to weigh on a case-by-case basis the interests protected by European Union law with a view to determining the conditions under which access to the file is to be permitted or refused? If the answer to Question 1 is in the negative: 2. Does European Union law preclude such a national provision where, although the latter applies in the same way to purely national antitrust proceedings and, moreover, does not contain any special rules in respect of documents made available by applications for leniency, comparable national provisions applicable to other types of proceedings, in particular contentious and non-contentious civil and criminal proceedings, allow access to documents before the court even without the consent of the parties, provided that the third person who is not party to the proceedings adduces prima facie evidence to show that he has a legal interest in obtaining access to the file and that such access is not precluded in the case in question by the overriding interest of another person or overriding public interest?’”

“49. In the light of all the foregoing considerations the answer to the first question is that European Union law, in particular the principle of effectiveness, precludes a provision of national law under which access to documents forming part of the file relating to national proceedings concerning the application of Article 101 TFEU, including access to documents made available under a leniency programme, by third parties who are not party to those proceedings with a view to bringing an action for damages against participants in an agreement or concerted practice is made subject solely to the consent of all the parties to those proceedings, without leaving any possibility for the national courts of weighing up the interests involved.”

“Preliminary observations 20 In order to answer the questions put by the referring court, it should be borne in mind at the outset that just as it imposes burdens on individuals, European Union law is also intended to give rise to rights which become part of their legal assets. Those rights arise not only where they are expressly granted by the Treaties but also by virtue of obligations which they impose in a clearly defined manner both on individuals and on the Member States and the EU institutions (see, to that effect, Joined Cases C-6/90 and C-9/90 Francovich and Others [1991] ECR I-5357, paragraph 31, and Case C-453/99 Courage and Crehan [2001] ECR I-6297, paragraph 19 and the case-law cited). 21 In that context, the Court has held previously that since Article 101(1) TFEU produces direct effects in relations between individuals and creates rights for the individuals (Joined Cases C-295/04 to C-298/04 Manfredi and Others [2006] ECR I-6619, paragraph 39 and the case-law cited), the practical effect of the prohibition laid down in that provision would be put at risk if it were not open to any individual to claim damages for loss caused to him by a contract or by conduct liable to restrict or distort competition (Courage and Crehan, paragraph 26). 22 Moreover, in accordance with settled case-law, the national courts whose task it is to apply the provisions of EU law in areas within their jurisdiction must ensure that those rules take full effect and must protect the rights which they confer on individuals (see, inter alia, Case 106/77 Simmenthal [1978] ECR 629, paragraph 16; Case C-213/89 Factortame and Others [1990] ECR I-2433, paragraph 19; Courage and Crehan, paragraph 25; and Manfredi and Others, paragraph 89). 23 Thus, first of all, the right of any individual to claim damages for loss caused to him by conduct which is liable to restrict or distort competition contrary to, inter alia, Article 101(1) TFEU strengthens the working of the Community competition rules, since it discourages agreements or practices, frequently covert, which are liable to restrict or distort competition, thereby making a significant contribution to the maintenance of effective competition in the European Union (see, to that effect, Courage and Crehan, paragraphs 26 and 27; Manfredi and Others, paragraph 91; and Pfleiderer, paragraph 28). 24 Secondly, that right constitutes effective protection against the adverse effects that any infringement of Article 101(1) TFEU is liable to cause to individuals, as it allows persons who have suffered harm due to that infringement to seek full compensation not only for actual loss (damnum emergens) but also for loss of profit (lucrum cessans) plus interest (see, to that effect, Manfredi, paragraph 95). 25 In the absence of EU rules governing the matter, it is for the domestic legal system of each Member State to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law. 26 Regarding, more specifically, the detailed procedural rules governing actions for damages arising from infringement of the competition rules, it is for the Member States to establish and apply national rules on the right of access, by persons believing themselves to be adversely affected by a cartel, to documents relating to national proceedings concerning that cartel (see, to that effect, Pfleiderer, paragraph 23). 27 However, while the establishment and application of those rules falls within the competence of the Member States, they must none the less exercise that competence in accordance with European Union law. In particular, the rules applicable to actions for safeguarding rights which individuals derive from the direct effect of EU law must not be less favourable than those governing similar domestic actions (principle of equivalence) and must not make it in practice impossible or excessively difficult to exercise rights conferred by EU law (principle of effectiveness) (see Courage and Crehan, paragraph 29; Manfredi, paragraph 62; and Case C-397/11 Jörös [2013] ECR I-0000, paragraph 29). Specifically, in the area of competition law, those rules must not jeopardise the effective application of Articles 101 TFEU and 102 TFEU (see Pfleiderer, paragraph 24, and Case C-439/08 VEBIC [2010] ECR I-12471, paragraph 57). 28 It is in the light of those considerations that the questions asked by the referring court should be answered.” (Emphasis added.)

“30 In order to answer that question, it should be observed that, in exercising their powers for the purpose of applying national rules on the right of access, by persons believing themselves to be adversely affected by a cartel, to documents relating to national proceedings concerning that cartel, the national courts must weigh up the respective interests in favour of disclosure of the information and in favour of the protection of that information (see, to that effect, Pfleiderer, paragraph 30). 31 That weighing-up is necessary because, in competition law in particular, any rule that is rigid, either by providing for absolute refusal to grant access to the documents in question or for granting access to those documents as matter of course, is liable to undermine the effective application of, inter alia, Article 101 TFEU and the rights that provision confers on individuals. 32 On the one hand, it is clear that a rule under which access to any document forming part of competition proceedings must be refused is liable to make it impossible or, at the very least, excessively difficult to protect the right to compensation conferred on parties adversely affected by an infringement of Article 101 TFEU. This is the case inter alia when only access to the documents relating to the proceedings before the competent national competition authorities enables those parties to obtain the evidence needed to establish their claim for damages. Where those parties have no other way of obtaining that evidence, a refusal to grant them access to the file renders nugatory the right to compensation which they derive directly from European Union law. 33 On the other hand, it should be observed that a rule of generalised access under which any document relating to competition proceedings must be disclosed to a party requesting it on the sole ground that that party is intending to bring an action for damages is not necessary in order to ensure effective protection of the right to compensation enjoyed by that party, as it is highly unlikely that the action for damages must be based on all of the evidence in the file relating to those proceedings.Furthermore, that rule could lead to infringement of other rights conferred by EU law, inter alia, on the undertakings concerned, such as the right to protection of professional secrecy or of business secrecy, or on the individuals concerned, such as the right to protection of personal data. Lastly, such generalised access is also liable to adversely affect public interests, such as the effectiveness of anti-infringement policies in the area of competition law, because it could deter parties involved in infringements of Articles 101 TFEU and 102 TFEU from cooperating with the competition authorities (see, to that effect, Pfleiderer, paragraph 27). 34 It follows that, as the Court has held previously, the weighing-up of interests justifying disclosure of information and the protection of that information can be conducted by the national courts and tribunals only on a case-by-case basis, according to national law, and taking into account all the relevant factors in the case (Pfleiderer, paragraph 31). 35 Although it is true, as observed by the Austrian Government, that that weighing-up must be done in the national legal context, national law must not be developed in such a way as to preclude any possibility for the national courts to conduct that weighing-up on a case-by-case basis. 36 Yet it is apparent from the order for reference and from all of the observations submitted to the Court that, under Paragraph 39(2) of the KartG, access to the competition court file is granted only if none of the parties to the proceedings object. 37 In such a situation, national courts having to rule on a request for access to the file have no opportunity to weigh up the interests protected by European Union law. In particular, those courts, which are empowered only to take due note of the consent or refusal expressed by the parties to the proceedings concerning the disclosure of the evidence in the file, may not intervene in order to protect overriding public interests or the legitimate overriding interests of other parties, including that of allowing disclosure of the documents requested, if just one of those parties objects. 38 It is also apparent from the order for reference that the parties to the proceedings before the competition court may object to access to the file without having to give any reasons. In practice this allows for systematic objections to any request for access, inter alia when the requests pertains to documents the disclosure of which is contrary to the interests of the parties to the proceedings, including documents which may contain evidence on which a claim for compensation could be based and which the requesting party cannot obtain by other means. 39 It follows that, in so far as the national legal measure or rule at issue in the main proceedings allows the parties to the main proceedings having infringed Article 101 TFEU the possibility of preventing persons allegedly adversely affected by the infringement of that provision from having access to the documents in question, without taking account of the fact that that access may be the only opportunity those persons have to obtain the evidence needed on which to base their claim for compensation, that rule is liable to make the exercise of the right to compensation which those persons derive from European Union law excessively difficult.” (Emphasis supplied.)

“56. Having read the documents, it seems to me that the Decision is in a different category from the other documents. It sets out the Commission's findings of the infringement, including the nature of the cartel and how it operated. The unredacted text of the Decision is made available to the EU Courts on the appeals brought by some of the present defendants. Moreover, the findings are likely to be binding on the English court in this claim against the addressees of the Decision arising out of the same facts: cp Inntrepreneur Pub Co v Crehan [2006] UKHL 38, [2007] 1 AC 333. It would be unsatisfactory in those circumstances if the court could not see the relevant parts of the Decision, and therefore if it was not available to the claimant. 57. Some of the redactions from the non-confidential version of the Decision are made on the grounds of commercial confidentiality, or, as the Commission points out in its submissions, to reflect its policy of not publicly disclosing the source of evidence given through corporate statements. Those concerns are met by restricting any disclosure to the confidentiality ring. They do not affect a leniency applicant's defence to the damages claim. 58. The Decision comprises 552 recital paragraphs and two annexes. Having read the relevant parts of the Decision in unredacted form, I conclude that a number, but by no means all, of the redacted passages should be disclosed. I set out the list of paragraphs (or parts of paragraphs) to be disclosed in the Appendix to this judgment. I should add that although, at my suggestion, NGET supplied a list of the paragraphs which it thought were the most likely to be relevant, in the end that was not of great assistance since NGET's advisers obviously could only guess at what might be contained in redacted passages and they would not be aware of a large number of redacted footnotes since those are not evident at all from the non-confidential version of the Decision. 59. As regards the other documents covered by the amended application, I consider that only very limited passages from a few of those documents should be disclosed. From the responses by ABB to the information requests from the Commission, those are passages which for the most part provide explanations of some of the pre-existing documents supplied by ABB to the Commission, which as I understand it have already been disclosed by ABB to NGET, or which explain the way the cartel operated. From the response of Areva to the information request from the Commission, the version of this document held by ABB and Siemens is in itself in redacted form. I find that in respect of only one answer which gives some explanation of the nature of the discussions at cartel meetings, and the documents involved, is the potential relevance of the material such that it should be disclosed. I set out those references in the Appendix. As regards all the other ABB leniency materials, including the responses by ABB to the SO, and the other parts of the Areva document, I find that they are not of such relevance to these proceedings and that the interest of protecting information supplied under the leniency programme outweighs the interest of providing disclosure to assist this compensation claim.”

“It defies logic to understand why given the fact that the Decision is available to BA in its entirety and in this case being used by BA in the claim against them, they [the Part 20 Defendants] do not wish the document to be put in the confidentiality ring so that they can fully see what is said about them in the Decision and deal with it.”

"In addition of course it enables the present dispute to be pursued by all parties on an equal arms basis i.e. all of them as opposed to some of them have the benefit of the Decision. As the action proceeds the confidentiality can be maintained so that there can be no damage caused by the Decision and whatever it might say about any party to this action going in the public domain and affecting that company’s goodwill."

“there is therefore no public interest in publishing the disputed information that is capable of prevailing over the applicant’s legitimate interest in having such information protected.”

“the confidentiality of that information cannot depend on whether, and to what extent, it is of probative value for the purpose of proceedings at national level.”

“(a) a wrongful interference with the actions of a third party in which the claimant has an economic interest and (b) an intention thereby to cause loss to the claimant”

“a person's liberty or right to deal with others is nugatory, unless they are at liberty to deal with him if they choose to do so. Any interference with their liberty to deal with him affects him. If such interference is justifiable in point of law, he has no redress. Again, if such interference is wrongful, the only person who can sue in respect of it is, as a rule, the person immediately affected by it; another who suffers by it has usually no redress; the damage to him is too remote, and it would be obviously practically impossible and highly inconvenient to give legal redress to all who suffer from such wrongs. But if the interference is wrongful and is intended to damage a third person, and he is damaged in fact—in other words, if he is wrongfully and intentionally struck at through others, and is thereby damnified—the whole aspect of the case is changed: the wrong done to others reaches him, his rights are infringed although indirectly, and damage to him is not remote or unforeseen, but is the direct consequence of what has been done.”

“The intentional harm tort and the “unlawful means” variety of conspiracy share the ingredients of the intentional infliction of harm on the claimant. But that variety of conspiracy is not simply the intentional harm tort committed by joint tortfeasors. The gist of the intentional harm tort (apart from exceptional “two party” cases) is striking at the claimant through a third party, and doing so by interfering with his freedom of economic activity. The gist of conspiracy is damage intentionally inflicted by persons who combine for that purpose (Viscount Simon LC in Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] AC 43 5 , 444) and the claimant need not be a trader who is injured in his trade, though that is the most common case. In my opinion your Lordships are driven to the conclusion that, as the economic torts have developed, “unlawful means” has a wider meaning in the tort of conspiracy than it has in the intentional harm tort.”

“Finally, there is the question of intention. In the Lumley v Gye tort, there must be an intention to procure a breach of contract. In the unlawful means tort, there must be an intention to cause loss. The ends which must have been intended are different. South Wales Miners' Federation v Glamorgan Coal Co Ltd [1905] AC 239 shows that one may intend to procure a breach of contract without intending to cause loss. Likewise, one may intend to cause loss without intending to procure a breach of contract. But the concept of intention is in both cases the same. In both cases it is necessary to distinguish between ends, means and consequences. One intends to cause loss even though it is the means by which one achieved the end of enriching oneself. On the other hand, one is not liable for loss which is neither a desired end nor a means of attaining it but merely a foreseeable consequence of one's actions.”

“The master of the Othello in Tarleton v M'Gawley Peake 270 may have had nothing against the other trader. If he had gone off to make his fortune in other waters, he would have wished him well. He simply wanted a monopoly of the local trade for himself. But he nevertheless intended to cause him loss. This, I think, is all that Woolf LJ was intending to say in a passage in Lonrho plc v Fayed [1990] 2 QB 479 , 494 which has proved controversial: “Albeit that he may have no desire to bring about that consequence in order to achieve what he regards as his ultimate ends, from the point of view of the plaintiff, whatever the motive of the defendant, the damage which he suffers will be the same.” “Albeit that he may have no desire to bring about that consequence in order to achieve what he regards as his ultimate ends, from the point of view of the plaintiff, whatever the motive of the defendant, the damage which he suffers will be the same.”

“164 I turn next, and more shortly, to the other key ingredient of this tort: the defendant's intention to harm the claimant. A defendant may intend to harm the claimant's business either as an end in itself or as a means to an end. A defendant may intend to harm the claimant as an end in itself where, for instance, he has a grudge against the claimant. More usually a defendant intentionally inflicts harm on a claimant's business as a means to an end. He inflicts damage as the means whereby to protect or promote his own economic interests. 165 Intentional harm inflicted against a claimant in either of these circumstances satisfies the mental ingredient of this tort. This is so even if the defendant does not wish to harm the claimant, in the sense that he would prefer that the claimant were not standing in his way. 166 Lesser states of mind do not suffice. A high degree of blameworthiness is called for, because intention serves as the factor which justifies imposing liability on the defendant for loss caused by a wrong otherwise not actionable by the claimant against the defendant. The defendant's conduct in relation to the loss must be deliberate. In particular, a defendant's foresight that his unlawful conduct may or will probably damage the claimant cannot be equated with intention for this purpose. The defendant must intend to injure the claimant. This intent must be a cause of the defendant's conduct, in the words of Cooke J in Van Camp Chocolates Ltd v Aulsebrooks Ltd [1984] 1 NZLR 354 , 360. The majority of the Court of Appeal fell into error on this point in the interlocutory case of Miller v Bassey [1994] EMLR 44. Miss Bassey did not breach her recording contract with the intention of thereby injuring any of the plaintiffs.” (Emphasis in the original.)

“I add one explanatory gloss to the above. Take a case where a defendant seeks to advance his own business by pursuing a course of conduct which he knows will, in the very nature of things, necessarily be injurious to the claimant. In other words, a case where loss to the claimant is the obverse side of the coin from gain to the defendant. The defendant's *58 gain and the claimant's loss are, to the defendant's knowledge, inseparably linked. The defendant cannot obtain the one without bringing about the other. If the defendant goes ahead in such a case in order to obtain the gain he seeks, his state of mind will satisfy the mental ingredient of the unlawful interference tort. This accords with the approach adopted by Lord Sumner in Sorrell v Smith [1925] AC 700 , 742: “When the whole object of the defendants' action is to capture the plaintiff's business, their gain must be his loss. How stands the matter then? The difference disappears. The defendants' success is the plaintiff's extinction, and they cannot seek the one without ensuing the other.”” “When the whole object of the defendants' action is to capture the plaintiff's business, their gain must be his loss. How stands the matter then? The difference disappears. The defendants' success is the plaintiff's extinction, and they cannot seek the one without ensuing the other.””

“36. In my judgment, although the defendants' purpose in entering into the cartel was to promote their own economic interests, it is wholly unrealistic to regard this as divorced from the causation of loss to purchasers of copper plumbing tubes, even if the loss caused to the claimants might not correspond to the defendants' gain. On the basis of OBG Ltd v Allan [2008] AC 1, I consider that this element of the tort can be established on the basis of the finding of infringement in the Decision alone.”

“Lord Sumner is taking the situation where loss to the plaintiff must follow from the object of the conspiracy. He was taking the case where the proved facts exclude every other inference. As Lord Nicholls puts it, the gain and the loss are inseparably linked. But it does not follow in this case that Newson group would inevitably suffer loss. That would not be so if they were able to pass on the price increases to their customers. They might even have made a profit if they were able to raise their prices in advance of becoming liable to pay price increases to IMI group.”

“Mr de la Mare seeks to meet this difficulty by submitting that it matters not if IMI group were simply indifferent whether the victims were the direct or the indirect purchasers of pipes and that it is sufficient that IMI group intended to make a profit at the expense of a class of persons to whom the wrongful acts were targeted. I would reject this argument. It deprives the requirement of intent to injure of any substantial content. It is tantamount to saying that it is sufficient that the conspirators must have intended to injure anyone who might suffer loss from their agreement.”

“..in circumstances where persons combine to abstract monies from a group and then to cover up and account for the abstraction in any way they can, an intent to injure or defraud any company which, as a result of their operations, ends up bearing the loss, may readily be inferred.”

“Even if it could be shown that the buyer raised his price in response to, and in the amount of, the overcharge and that his margin of profit and total sales had not thereafter declined, there would remain the nearly insuperable difficulty of demonstrating that the particular plaintiff could not or would not have raised his prices absent the overcharge or maintained the higher price had the overcharge been discontinued.”