The European Commission came in for some stern criticism from the High Court this week, in a case which looks set to test the boundaries of confidentiality in EC infringement decisions: see Emerald Supplies v BA  EWHC 3515 (Ch).
The background is the 2010 EC decision fining BA and eleven other airlines a total of €800m for operating a global cartel for air freight services. Hundreds of claimants are seeking damages, and they sought disclosure of a copy of the decision – which, remarkably, has not yet been made public by the EC. Continue reading
Further to my post this morning, the CAT’s website has just been updated with a new judgment on confidentiality, Ryanair Holdings plc v Competition Commission  CAT 25. The Tribunal has ruled, in the context of a challenge to the CC’s decision requiring Ryanair to divest itself of the large part of its minority stake in Aer Lingus, that not even Ryanair’s lawyers are entitled to see a fully unredacted copy of the decision. It would appear from the judgment that the case is likely to give rise to further arguments about procedural fairness and confidentiality: certainly one to watch.
Dealing with confidential information in competition cases can be tricky. The CAT’s recent judgment in BMI Healthcare and others v Competition Commission  CAT 241 provides some help.
The core problem of confidentiality in the context of competition law is that many of the arguments deployed by litigants and regulators rely upon information which is highly commercially sensitive. Revealing one party’s business secrets to another – letting the cat out of the bag2 – not only risks aggravation to the cat’s owner but has the potential for serious economic harm. Continue reading