2014: The Year Air Cargo Took Off

First published on 15 January 2015 in Global Competition Law Review.

Co-authored by Tom Bolster and Oliver Bartholomew

Case Background

On 9 November 2010, the European Commission issued a decision1 fining 11 major airlines almost €800 million for operating a global cartel that affected air cargo services within the European Economic Area between December 1999 and February 2006. The case of Emerald Supplies & Ors v British Airways is one the first and largest of many private damages actions that have now been brought against British Airways Plc, and other airlines in this regard. The claim brings together 565 direct and indirect purchasers of air freight services who claim they paid inflated prices for their air freight as a result of the cartel.

2014 was a very eventful year in the case, resulting in the unprecedented disclosure to the Claimants of a redacted version of the EC's decision before the publication of any version of that decision to the world at large, as well as the handing down of a judgment on the topical issue of the use and viability of economic torts in cartel damage claims. Finally, the year ended with an eventful four day case management conference (CMC) in December, during which the Court imposed wide ranging disclosure Orders on all parties in the proceedings. This article summarises and comments on these developments, considering their potentially wider impact on similar claims in the future.

Court's ruling on redacted version of European Commission's Decision

Faced with a refusal from BA to voluntarily disclose to the Claimants its version of the EC's decision, and the Commission's inability, despite repeated assurances, to disclose a non-confidential version of that decision in a timely manner, the Claimants issued in February 2014 a formal application against BA, in order to access the decision. Following a first CMC in March 2014, the airlines were ordered to make available a first redacted version of the decision, for examination by the Claimants. This was eventually done on 10 July 2014 after the airlines had had an opportunity to redact material they argued could not be disclosed on the grounds that it constituted leniency material or material covered by the protections against disclosure contained in the case of Pergan v Commission.2

In the first of two judgments handed down of 28 October 20143, which arose out of a hearing held on 31 July 2014 following the Claimants' Application dated 22July 2014 for many of...