14 January 2016

Information disclosed to MasterCard may not be protected when disclosed to claimants

The European Commission (the Commission) has warned the English High Court that confidentiality provisions under UK law may not be sufficient to safeguard information that has been disclosed to claimants during the course of civil actions for damages.

During the course of its review of the Commission’s interregional interchange fees investigation file, MasterCard came across certain documents which evaluated the costs of various payment methods. These documents were prepared for the Commission by external consultants. MasterCard (the defendant in the case) was of the view that these documents could be disclosed to the claimant, as it considered them to be relevant to its ongoing damages litigation in the High Court.

The High Court judge ordered the documents to be disclosed to external legal advisers and experts, but also gave the Commission three weeks to comment on the decision to order disclosure (the Order), which remained pending during that time.

On 12 January 2016, the Commission published its opinion asking the judge to reconsider the Order. First, the Commission highlighted that a Directive recently adopted by the EU (the Damages Directive) regulates the disclosure of certain categories of evidence, including “information that was prepared by a natural or legal person specifically for the proceedings of a competition authority" and "information that the competition authority has drawn up and sent to the parties in the course of the proceedings,” and provides that such information can only be ordered after a competition authority has closed its proceedings. The EU proceedings are ongoing, however the Damages Directive will not apply in this instance as it has not yet been implemented in the UK (it is due to be implemented by 27 December 2016).

Secondly, the Commission's opinion explained that it was necessary for the judge to balance the interests of the claimant in having access to documents enabling it to prepare its action for damages, against the harm disclosure may cause for the effective enforcement of Articles 101 and 102 of the Treaty on the Functioning of the European Union. The Commission's view is that the latter weighs more heavily in this case. Although the documents in question are non-confidential versions, they were anonymised on the basis that they were being provided specifically to MasterCard. Third-parties who provided information in the documents may object to it being shared with the claimant, even if MasterCard is comfortable with the protections offered by UK law.

The Commission followed the approach set out in the Damages Directive, and seems to suggest that the UK High Court should aim to do the same, despite the fact that the Damages Directive has not yet been implemented in the UK. 

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