On 3 December 2012, an Order of the President of the General Court was published in interim proceedings initiated by the French energy company Alstom (Case T-164/12). In this Order, the President suspended a decision by the Commission to transmit documents to the High Court of England and Wales submitted by Alstom in the gas insulated switchgear cartel case. This Order follows similar decisions to suspend the Commission's decisions relating to the disclosure of confidential information (see the Orders in Akzo Nobel and Degussa, reported in the previous issue of Stibbe's Competition Law Newsletter).
Following the Commission decision in the gas insulated switchgear cartel, National Grid Electricity Transmission plc brought a claim for damages against Alstom before the High Court of England and Wales. In this procedure, the High Court granted an application from National Grid for disclosure of the replies of Alstom to the statement of objections. Before the High Court requested the Commission to transmit the documents, it established a confidentiality ring. The aim of the confidentiality ring was to protect the confidential information contained in the documents provided to the parties to the High Court proceedings. After the Commission decided to accede to the High Court's request, Alstom took the matter to court and submitted interim relief proceedings seeking suspension of the Commission decision.
In assessing whether the condition of urgency was satisfied, the President considered that it was likely that the High Court would issue a judgment on the damages case sooner than the General Court would rule on the decision to transmit documents to the High Court. This meant that there was a serious and far from hypothetical risk that the High Court would reach a decision taking into account the information transmitted, before the General Court would have had the opportunity to rule on the lawfulness of that transmission. The President held that Alstom's right to effective judicial protection would be rendered meaningless if the application were to be refused and the documents were transmitted to the High Court. This led the President to conclude that the condition of urgency was met.
Subsequently, the President concluded that there was a prima facie case. First of all, the President found that the Commission had failed to assess the actual effects of the protection provided by the confidentiality ring. The President pointed out that "the composition of the confidentiality ring clearly presented difficulties for the applicant since it objected to the disclosure within that circle of the confidential versions of the documents requested." Given this circumstance the President held that the Commission had failed to take precautions other than those provided for in its decision.
Furthermore, the President found that the confidentiality ring consisted of a large number of people (92) in various positions, some of them not being lawyers. The President held that the Commission failed to examine in detail the specific consequences of the confidentiality ring for the protection of professional secrecy. The President concluded that the Commission could not simply maintain that the purpose of the confidentiality ring was to enable the parties' lawyers to inspect the documents disclosed, when in fact the composition of that ring was neither immutable nor restricted to lawyers.
The President even took it a step further in finding that this was an exceptional case in which it might not be possible to fully ensure the protection of third parties, despite taking all the necessary precautions. In that case, the Commission may refuse to disclose documents to national judicial authorities. The President held that it was conceivable that the Court when ruling on the main application must determine whether the Commission found itself in that situation.