Damages claims: no unlimited obligation to produce documents - International Law Office

The Arnhem District Court recently ruled on a request to order TenneT – the electricity grid operator – to make available certain documents relating to damage suffered by it as a result of the gas insulated switchgear cartel.

In 2007 the European Commission fined 11 groups of companies over €750 million for participating in a cartel for gas insulated switchgear projects.(1) TenneT launched legal action against cartel participants ABB and Alstom to recover the damages that it had suffered as a result of this cartel. In response, the cartel participants ordered access to certain of TenneT's documents; however, the court rejected their petition.(2)

The court first reiterated that Article 843a of the Code of Civil Procedure does not provide unrestricted access to all documents. In response to the document request, TenneT introduced a multitude of documents to the proceedings, none of which overlapped with the documents requested, and stated that the other documents had been lost over time. This was supported by a statement made by TenneT's archives manager.

The court held that TenneT had sufficiently demonstrated that it had no further documents in its possession. According to the court, the fact that no more documents were available should not have come as a total surprise, since there is a statutory duty to keep documents for only seven years and almost all documents dated from before 2005.

For further information on this topic please contact Jolling De Pree or Erik H Pijnacker Hordijk at De Brauw Blackstone Westbroek by telephone (+31 70 328 53 28), fax (+31 70 328 53 25) or email (jolling.depree@debrauw.com or erik.pijnackerhordijk@debrauw.com).

Endnotes

(1) Case COMP/F/38.899 – Gas insulated switchgear of January 24 2007. The European Commission re-adopted a decision fining Mitsubishi Electric Corporation and Toshiba Corporation for their participation in a cartel on the markets for gas insulated switchgears, after part of the original decision (IP/07/80) was annulled by the European General Court for a breach of equal treatment in the setting of the two companies' fines (cases T-113/07 and T-133/07). See the European Commission's press release of June 27 2012, IP/12/705.

(2) District Court of Arnhem, May 16 2012, LJN: BW7445 and LJN: BW7444.