In the second of two briefings on the Judgment of the Court of Appeal, 14 October 2015, for the case Emerald Supplies Ltd v British Airways Plc  EWCA Civ 1024 (“Air Cargo”), Andrew Feld discusses the consequences of the decision for claimants seeking access to the confidential text of European Commission decisions on infringement, in particular the extent to which English disclosure processes can be used to go behind “Pergan protection”.
This Court of Appeal decision is part of a long-running damages action in the English Courts based on alleged breaches of EU and UK Competition Law. It is alleged that various airlines took part in a global cartel that fixed surcharges on air cargo rates (air freight).
The action follows on from the European Commission’s investigation in Comp/3928 Air Freight and its 2010 decision (“the Decision”) finding that certain airlines, including British Airways (“BA”), had infringed EU competition law.
In the first briefing, Josephine Davies examined the effect of this decision on the extent to which claimants can rely on English law economic torts as a basis for a claim in damages against alleged cartel participants.
Please find the second briefing available here to download.