Secretary of State for Health and Others v Servier Laboratories Ltd and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Henderson |
| Judgment Date | 12 March 2015 |
| Neutral Citation | [2015] EWHC 647 (Ch) |
| Date | 12 March 2015 |
| Court | Chancery Division |
| Docket Number | Case Nos: HC11C01423, HC12E02766 and HC12B03451 |
[2015] EWHC 647 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Rolls Building,
Royal Courts of Justice
Fetter Lane, London, EC4A 1NL
Mr Justice Henderson
Case Nos: HC11C01423, HC12E02766 and HC12B03451
JUDGMENT ON TERMS OF THE CONFIDENTIALITY ORDER
Introduction
This judgment concerns the terms of the confidentiality order which the court should make when directing the defendants ("Servier") to give disclosure in the present proceedings of the decision adopted by the European Commission ("the Commission") on 9 July 2014 in case COMP/AT. 39612 addressed to Les Laboratoires Servier SAS and other companies in the Servier group ("the Decision").
As matters now stand, the Decision is confidential to Servier. I was informed that a redacted version of it intended for general publication is in the course of preparation by the Commission, but it is not known when it will be ready for publication. In any event, for the purposes of the present proceedings it is common ground that both the claimants and the court need to have access to the original confidential version of the Decision. There are at least two reasons for this. First, the parties must be able to review their pleaded cases, define the issues, and deal with disclosure of documents in the light of, and consistently with, the Decision. Secondly, the court itself must ensure that it complies with its own duty under Article 16 of Council Regulation (EC) No. 1 of 2003 ("the 2003 Regulation") to avoid taking decisions which are in conflict with the Decision.
To that end, the terms of a draft confidentiality order were agreed between the parties, and provisionally approved by the court, in August 2014. I considered it prudent, however, to request the Commission's opinion on the terms of the draft order in accordance with the procedure laid down in Article 15(1) of the 2003 Regulation and the Co-operation Notice of 27 April 2004. A similar procedure has been followed in other recent English competition law cases, including the National Grid and MasterCard litigation. The Commission clearly has an important interest in seeking to maintain the confidentiality of its decisions, particularly having regard to the duties imposed on it by Article 339 TFEU, even though the case law of the European Court establishes that confidential documents obtained from the Commission may be disclosed in proceedings before a national court: see the judgment of the General Court of 18 September 1996 in Postbank NV v Commission, Case T-353/94, [1996] ECR II-921, (" Postbank") at paragraphs 89, 90 and 92.
My request to the Commission was sent on 2 September 2014, and on 22 December 2014 the Commission gave its opinion. It was forwarded to me under cover of a letter dated 23 December from the Director-General, Competition, which unfortunately did not reach me until 12 January 2015.
The Commission's Opinion
After setting out the legal background, some of which I have summarised above, and referring to the judgment in Postbank, the Commission said at paragraph 12 of its opinion:
"It is then for the national court to effectively guarantee appropriate protection of confidential information that belongs to legal or natural persons from whom the information was obtained by the Commission (i.e., the originators of the information). Although this is not a situation where the Commission is itself asked to provide the Decision to the Court, the Commission considers that its obligations under Article 339 TFEU mean that it should draw the Court's attention to the entitlement of the undertakings concerned to the protection of their confidential information. In addition to Article 339 TFEU, the Commission also draws attention to the provisions of Articles 7 and 8 of the Charter of Fundamental Rights, which are relevant here as the High Court is implementing EU law by being seised of proceedings in which the cause of action is the alleged loss to the Claimants arising from an infringement of EU competition law. It follows from these provisions that the rights of those whose confidential information is liable to be used must be taken into account."
The Commission then pointed out that information supplied to it by third parties (including, but not confined to, the parties under investigation) in the course of its enquiry had to be supplied in a non-confidential version, but such information would not necessarily be considered non-confidential in relation to the wider world, including the present claimants. I was informed that the Decision includes information gathered from some 40 third parties, apart from the addressees of the Decision. Furthermore, by virtue of Article 15(4) of Regulation (EC) 773/2004, documents obtained through access to the Commission's file by any of the addressees of a Statement of Objections shall only be used for the purposes of judicial or administrative proceedings for the application of Articles 101 and 102 TFEU.
In the light of these principles, the Commission stated its "Intermediate conclusion" in the following terms:
"17. The Commission therefore respectfully submits that the Charter of Fundamental Rights and the general principle of sincere co-operation between the Commission and national courts implies that the High Court should have regard to the rights under Article 339 TFEU of persons concerned when deciding upon the disclosure of the confidential version of the Decision."
Next, the Commission addressed the first question put to it by the High Court which asked whether the Commission:
"have any objection to the High Court ordering Servier to disclose, and provide a copy of, the Decision to the Claimants and to the High Court subject to the terms of the confidentiality club?"
The Commission began by saying that, as appears from its letter in the National Grid case, which was quoted in the High Court's request, it did not consider that "there is any basis to object in principle to the disclosure of the confidential version of the Decision", particularly given the High Court's view that such disclosure was necessary not only to facilitate the claimants' cases, but also to ensure compliance with Article 16 of the 2003 Regulation.
The Commission went on, however, to express certain concerns about the terms of the proposed confidentiality club. I would summarise those concerns as follows:
1) First, although the terms had been agreed between Servier and the claimants, no other third parties had been involved in negotiating the proposed arrangements. The agreement of Servier would not necessarily ensure that the interests of third parties in the protection of their confidential information would be sufficiently protected. The court should therefore give consideration to the position of third parties.
2) The proposed categories of individuals who would have access to the confidential version of the Decision, namely "Professional Advisers" and "Permitted Recipients", were not limited to named persons, and the list of "Permitted Recipients", identified by name or function in the schedule to the draft order, could be amended at any stage of the proceedings, either with the written consent of the parties or the consent of the court.
3) The confidentiality club was "considerably more widely drawn than in similar arrangements" which the Commission had seen in other proceedings in which damages are sought for infringements of Articles 101 and 102. In particular:
(a) the list of Permitted Recipients might include persons who had commercial relationships with the addressees of the Decision or third parties, and might also include "persons holding political functions";
(b) provision was made for parts of the Decision to be shown to persons outside the confidentiality club if Servier agreed, even if the information to be disclosed originated from a third party; and
(c) disclosure outside the club was also permitted if such disclosure was required by the Scottish Parliament or the Northern Ireland Assembly. This could potentially permit the disclosure of confidential information for purposes other than the application of Articles 101 and 102.
The Commission was also concerned that paragraph 5 of the draft order might be too widely drawn in that it envisaged use of the confidential version of the Decision for the purposes of "issuing new proceedings arising out of the subject matter of these proceedings". It was not clear that the nature of any such...
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The Secretary of State for Health and Another v Servier Laboratories Ltd and Others
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