On 22 March 2018, the Belgian Supreme Court (the “Supreme Court”) dismissed an appeal against an interim judgment of the Brussels Court of Appeal (the “Court of Appeal”) on the damages claim introduced by the European Commission (the “Commission”). This claim arose following the Commission’s 2007 decision fining four elevator companies, Kone, Otis, Schindler and ThyssenKrupp (the “Defendants”), a total of EUR 992 million for their participation in a cartel on the markets for the sale, installation, maintenance and renewal of lifts and escalators in Belgium, Germany, Luxembourg and the Netherlands (the “Cartel Decision” - see VBB on Competition Law, Volume 2007, No. 3, available at www.vbb.com).
In June 2008, the Commission brought an action for damages before the Brussels Commercial Court (the “Commercial Court”) based on its Cartel Decision as it considered that it had suffered injury due to the cartel. On 24 November 2014, after having requested a preliminary ruling from the Court of Justice of the European Union, the Commercial Court dismissed the Commission’s action for damages for lack of sufficient evidence.
The Commission appealed the judgment of the Commercial Court of 24 November 2014 before the Court of Appeal. On 28 October 2015, the Court of Appeal issued an interim judgment ordering the four Defendants to disclose documents from the Commission’s cartel file (the “Judgment”). The Court of Appeal ordered the disclosure of: (i) specific paragraphs of the Commission’s Cartel Decision discussing the Belgian market; and (ii) a copy of the documents from the Commission’s investigation file as referred to in the Cartel Decision. Following the Judgment, the Defendants were required to hand over two versions of each set of documents: one complete version and one version leaving out specific confidential information listed in the Judgment (e.g., personal data of natural persons, information which could lead to the identification of the leniency applicant and internal documents of the Commission).
The four Defendants lodged an appeal before the Supreme Court to annul the Judgment, based on two arguments. First, the Defendants argued that the Court of Appeal’s interpretation of the documents of the leniency programme which benefit from the confidentiality obligation is too narrow. The Supreme Court held that, in accordance with the ECJ’s judgment in Donau Chemie and Others (C-536/11, Donau Chemie and Others, EU:C:2013:366), it is up to the national courts to balance: (i) the interests of the claimant to review the documents in view of the preparation of its claim to seek damages, taking into account any possible alternatives at the claimant’s disposal; and (ii) the concrete potential negative effects of disclosure to the public interest or legitimate interests of third parties. According to the Supreme Court, solely invoking the risk that the disclosure may undermine the leniency programme is insufficient. Non-disclosure is justified only if there is a risk that a specific document may actually undermine the public interest relating to the effectiveness of the national leniency programme.
Secondly, the Court dismissed the argument of the Defendants that the Court of Appeal did not take into account the extent to which the public interest would be affected by ordering the disclosure of evidence which the Commission had obtained in the framework of the leniency programme. According to the Supreme Court, the Court of Appeal did take into account the specific circumstances of the case justifying the disclosure of the documents, referring, in particular, to the following considerations:
the specificity of the follow-on procedure and the fact that no evidence could be collected at the time when the harmful practices occurred and the relevant evidence therefore necessarily came into possession of the parties in an asymmetrical manner;
the burden of proof in these proceedings required a factual and economic analysis which is generally too complex for a claimant to produce on its own;
the relevance of the documents requested to be disclosed and whether these will likely serve to substantiate the claim of the Commission;
the fact that the Cartel Decision notes that the cartel has effectively had anticompetitive effects, confirms the existence of the cartel and assumes that the cartel has negatively impacted the Belgian market; and
the opinion of the Commission constitutes at least prima facie evidence that the harmful practices have caused an injury to the market players.
The judgment of the Supreme Court comes as a welcome ruling for the Commission, which has had to overcome several hurdles to recover damages before the Belgian courts. The judgment is also a valuable tool for claimants seeking to substantiate their damage claims with documentation which the Commission obtained through the leniency programme.
The Supreme Court has now referred the case back to the Court of Appeal, which will further assess the Commission’s claims for damages.
By Martin Favart and Valérie Lefèvre
