On December 17, 2020, the Hanover Regional Court ordered the disclosure of the confidential version of an infringement decision of the EC (the “Infringement Decision”).[1] It is the first decision granting access to a confidential version of a previously nondisclosed decision by a competition authority. Other courts have shown a tendency to limit the scope of the disclosure rights.[2]

The defendant was a member of a cartel which fixed the purchase prices of scrap lead-acid automotive batteries from 2009 to 2012 (“car battery cartel”).[3] The applicant, a waste disposal and recycling company in Berlin, requested the Infringement Decision by way of an interim injunction in order to prepare its claim for damages caused by the cartel.[4] The Hanover Regional Court made two observations that are likely to have a significant impact on the pre-trial discovery in private follow-on cartel damages actions.

First, the Hanover Regional Court held that a party striving to obtain information necessary to prepare cartel damage actions benefits from a simplified interim injunction procedure which does not require the applicant to present the urgency of the matter. In recent cases, applicants had difficulties showing urgency and thus resulting in courts dismissing their motions.

Second, the Hanover Regional Court held that the plaintiffs’ interests prevailed over the defendant’s interest in secrecy because the redacted parts of the decision merely provided further details of the infringing conduct, were limited to information regarding a specific purchase, and the defendant’s right to secrecy was ensured by the Hanover Regional Court’s order prohibiting the disclose to third parties, including other entities of the same organization.

The decision has been appealed by the defendant.

[1] Altbatterien-Kartell (13 O 265/20), Hanover Regional Court decision of December 17, 2020, not yet published.

[2] E.g., Herausgabe von Beweismitteln I (VI-W (Kart) 2/18), DCA decision of April 3, 2018, only available in German here.

[3] Car battery recycling (Case AT.40018), EC decision of February 8, 2017, available in English here.

[4] See Sec. 89d (5), Sec. 33g and Sec. 186 (5) ARC.