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Guidance on Disclosure of Documents from European Commission’s Case File in Action for Damages

The European Commission’s formal opinion dated 5.05.2014 in application of Article 15(1) of Regulation (EC) 1/2003 (“Formal opinion”), provides some guidance for the private parties and for the national courts on the access to information/documents gathered during the European Commission’s antitrust investigation. Disclosure of such information/documents is a controversial issue in any action for damages.

Legal framework

Article 15(1) of Regulation No 1/2003 provides that in proceedings for the application of Article 101 or 102 TFEU, courts of the Member States may ask the European Commission to transmit to them information in its possession or its opinion on questions concerning the application of the EU competition rules. The English Court asked the European Commission to provide guidance on what documents and in what amount may be disclosed in the action for damages against MasterCard (Wm. Morrison Supermarkets plc and Others v MasterCard Incorporated and Others)..

MasterCard litigation

The MasterCard litigation is one of the largest private actions for damages brought before the English court.

The damages claims before the English court are based on the European Commission's infringement decision 2007 in relation to MasterCard’s multi-lateral interchange fees, which were found to be in breach of the EU competition law.

MasterCard unsuccessfully challenged the decision in the General Court and has appealed to the Court of Justice of the EU (the ECJ). It is expected that the ECJ will give its ruling on this case this September.

In the meantime, WM Morrison and Asda together with other retailers have brought private actions claiming damages from MasterCard in the amount of approx. £400 million.

Highlights of the Formal opinion

  • A national court must weigh-up the competing interests of disclosure against potential harmful consequences that may result from such disclosure with regards to the legitimate interest of other parties or public interests.

  • In relation to documents and information voluntarily provided by parties to the European Commission (e.g. replies to a Statement of Objections), the national courts need to assess whether there are any overriding reasons for refusing disclosure on a case-by-case basis. In general, disclosure of such materials should not be refused.

  • Where disclosure could undermine an ongoing investigation concerning the suspected competition law infringement, the national courts should refrain from ordering it, unless the administrative procedure is closed with the adoption of the respective decision.

  • In case the file contains a substantial amount of commercially sensitive third party information that is confidential, the national court must take appropriate measures (e.g. asking the third parties to make further redactions) to protect such information from any disclosure.

What is next?

The Formal opinion of the European Commission does not have a binding nature. Therefore, the ECJ’s ruling in MasterCard case together with the Directive on private enforcement (both are expected this September) will be vital for clarifying and increasing efficiency of the private damages actions, where disclosure of documents/information from the case file of the competition authorities has proved to be an issue.

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