CJEU Sets the Bar Low for Evidence Disclosure in Competition Damages Litigation

The Court of Justice of the European Union (CJEU) has delivered a significant ruling that clarifies the rules governing evidence disclosure in competition damages litigation. The judgment addresses three critical questions: (1) whether pre-action disclosure falls within the scope of the EU Damages Directive, (2) what evidence is needed to establish that there is a plausible damages claim, and that therefore a disclosure request should be granted, and (3) how the plausibility threshold should be assessed.

The case, Meliá Hotels International, S.A. v Associação Ius Omnibus, arose from a disclosure request brought by Associação Ius Omnibus ("Ius Omnibus"), a Portuguese consumer association, against Meliá Hotels International ("Meliá"). In 2020, the European Commission found that Meliá had infringed EU competition law by implementing vertical practices that differentiated between consumers on the basis of their nationality or country of residence, thereby restricting active and passive sales of hotel accommodation. Before bringing a collective action for damages, Ius Omnibus sought the disclosure of certain documents from Meliá in order to determine the scope and effects of the anticompetitive practices identified by the Commission, and quantify the harm caused to Portuguese consumers.

1. Pre-Action Disclosure Is Protected under the Damages Directive

One of the most significant takeaways from the judgment is the CJEU's confirmation that a prior action for access to evidence, brought before an action for damages, falls squarely within the scope of Directive 2014/104/EU (the "Damages Directive"). The CJEU found that any interpretation that confined Article 5 of the Damages Directive solely to actions for damages stricto sensu, to the exclusion of prior actions for access to evidence, would be contrary to the objectives of the Damages Directive.

Prior actions are therefore protected by Article 5 of the Damages Directive. However, they are also subject to the balancing mechanism set out in Articles 5(2) and (3), which is designed to prevent "fishing expeditions", i.e., non-specific searches for information unlikely to be of relevance. Claimants should therefore make sure that their requests are properly targeted. National courts can only order the disclosure of specified items of evidence or relevant categories of evidence, circumscribed as precisely and as narrowly as possible. Broad or undifferentiated requests are likely to be rejected on proportionality grounds.

2. What is Needed to Satisfy the "Plausibility" Threshold? Not Much.

Article 5(1) of the Damages Directive requires defendants to disclose relevant evidence provided the claimants have presented a reasoned justification to support the plausibility of their claim for damages based on reasonably available facts and evidence. In order to demonstrate the plausibility of a claim for damages, it is not necessary to establish that it is more likely than not that the conditions for liability (infringement, harm and causal link) are met. It is sufficient for the claimant to demonstrate that the assumption that those conditions are met is reasonably acceptable.

The Damages Directive seeks to remedy the information asymmetry which characterizes actions for damages for competition law infringements, given that evidence necessary to prove a claim is often held exclusively by defendants or by third parties and is not sufficiently known by, or accessible to, claimants. The CJEU clarified that claimants should not be subject to strict legal requirements which could unduly prevent the effective exercise of their right to compensation. The Court made a distinction between the plausibility threshold for disclosure and the merits standard: the standard of proof required to obtain the evidence necessary for initiating an action is lower than that required for the purpose of establishing that the conditions for liability are satisfied in the proceedings on the merits.

3. Assessing the “Plausibility” of a Damages Claim: A Commission Decision Alone Is Not Enough in Vertical Cases — But It Helps

A Commission decision finding an infringement of EU competition law in the form of a vertical restriction is not sufficient in itself to establish the plausibility of a claim for damages, since that claim requires proof not only of the plausibility of such an infringement, as established by the decision, but also of harm and of a causal link between that harm and the infringement. This contrasts with cartel cases, where claimants benefit from a significant procedural advantage: in the case of a Commission decision finding a cartel, the plausibility of the harm caused by the infringement is deemed to have been demonstrated unless the defendant rebuts the presumption. Under the Damages Directive, there is a rebuttable presumption that cartels cause harm. However, this presumption does not exist in the case of a vertical restriction of competition involving non-competing undertakings operating at different levels of the production or distribution chain.

Nonetheless, a Commission decision is not without value in vertical cases. A decision finding that there is a vertical restriction may include elements relevant to the assessment of the plausibility of harm and of the causal link, in conjunction with the other facts and evidence reasonably available to claimants. The CJEU illustrated this point with reference to the Meliá decision itself: it was apparent from the Commission's decision that the agreements at issue limited the ability of tour operators to sell accommodation freely in all EEA states — a finding that constituted an indication that the infringement was likely to have affected Portuguese consumers, which, in combination with other reasonably available facts and evidence, could be taken into account for purposes of assessing the plausibility of harm and the causal link.

Furthermore, the CJEU found that Commission decisions adopted following a settlement procedure, rather than a full adversarial process, carried the same evidentiary weight as any other Commission decision. The fact that the Meliá decision was adopted in the context of a settlement procedure is irrelevant for the purpose of establishing the infringement element of the plausibility test.

Conclusion

The Meliá judgment is a welcome development for claimants in competition damages litigation. By confirming that pre-action disclosure is protected under the Damages Directive, setting a deliberately accessible plausibility threshold, and clarifying the evidentiary value of Commission decisions in both vertical and cartel cases, the CJEU has meaningfully strengthened the practical toolkit available to those seeking compensation for competition law infringements.

As private enforcement of competition law continues to grow across the EU, the Meliá ruling will serve as an important reference point for parties and national courts navigating the evidentiary rules that govern this fast-evolving area of litigation.