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Competition Law

Analysis - debate - current awareness

16 JAN 2012

NY judge denies a request for disclosure of the confidential air-cargo cartel decision

Last month the New York judge magistrate Viktor Pohorelsky denied a request for disclosure of the confidential version of the European Commission air-cargo cartel decision, which had been submitted by plaintiffs in a multi-district case seeking damages from companies such as Korean Air, Air Canada, Cathay Pacific and Singapore Air.

The European Commission’s decision, which was adopted in November 2010, fined 11 airlines, including British Airways and Air France-KLM, a total of 799 million for operating a cartel on the air-freight market.  The non-confidential version, without confidential corporate data, has not yet been published.

The request for disclosure was denied on the basis that comity concerns outweighed the need for disclosure.  Judge magistrate Pohorelsky seems to have accepted arguments put forward by Alexander Italianer, the Director General of the European Commission’s Competition department, such that the disclosure of the confidential version of the air-cargo cartel decision would be “highly detrimental to sovereign interests and public policies of the European Union, and would substantially undermine the Commission’s ability to detect and punish unlawful cartel activity.”  Disclosure would have been particularly damaging if it reduced companies’ willingness to cooperate with competition regulators through whistleblowing, which is the main means of detecting cartels.

Judge magistrate Pohorelsky did however state that, following publication of the non-confidential version of the air-cargo cartel decision, plaintiffs may be able to apply for discovery in relation to specific points.

Mitsuko Akiyama

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