In response to a request from the English High Court, which is currently reviewing a cartel damage claim, the European Commission has submitted an amicus curiae brief on the disclosure of leniency documents. The Commission’s opinion is that national courts should not order the disclosure of leniency documents prepared specifically for the purpose of an application under the EU leniency programme. In contrast, the applicant’s reply to the statement of objections and the replies to requests for information could be ordered to be disclosed, insofar as they do not concern leniency material.

Uncertainty Concerning Disclosure of Leniency Documents

The Plaintiff in the English case, utility company National Grid, is claiming damages from several undertakings fined by the Commission in 2007 for their participation in the gas insulated switchgear cartel. National Grid has sought access to the leniency applications in order to substantiate its claims.