CJEU interprets concept of plausibility under article 5(1) Damages Directive

On January 29, 2026, the Court of Justice of the European Union (“CJEU”) issued its judgment in case C-286/24 (Meliá/Ius Omnibus), offering a clear answer to the questions raised by the Portuguese Supreme Court (“PSC”) in its request for a preliminary ruling and which we discussed in our entry dated June 26, 2025, at the time of publication of the conclusions of Advocate General Maciej Szpunar.

The PSC, in the context of a declaratory action brought by Omnibus against Meliá Hotels International, S.A. ("Meliá") based on the decision by the European Commission (the “Commission”) of February 21, 2020, in case AT.40528 — [Meliá (Holiday Pricing)], raised several questions regarding interpretation of article 5(1) Damages Directive. Under article 5(1), in an action arising from infringements of competition law, the plaintiff can request disclosure if it submits a reasoned statement of reasons containing the facts and evidence to which it has reasonable access and which are sufficient for justifying the plausibility of the action for damages.

The request for a preliminary ruling required defining (i) whether the applicability of article 5(1) Damages Directive extends to a request to access sources of evidence made before the bringing of an action for damages (to prepare a potential claim); and (ii) the scope of the “plausibility” requirement of the action established in article 5(1) Damages Directive, including the role of an administrative decision not subject to appeal which declares infringement of competition law.

In the first question raised, the PSC asks about the interpretation of article 5(1) Damages Directive and whether it also applies to a prior action for access to sources of evidence. In its answer, the CJEU is clear when it declares that article 5(1) Damages Directive is applicable to requests for disclosure of means of evidence made before the filing of an action for damages. The CJEU explains that restricting the disclosure mechanism to proceedings in which the action for damages has already been formally filed would render ineffective the objective of the Damages Directive to facilitate the preparation and filing of actions for damages.

This reading avoids formalities that would render ineffective the access to evidence that is essential for formulating the claim and it is aligned with the purpose of effectiveness of actions for damages arising from breaches of articles 101 and 102 TFEU.

Immediately after, the judgment analyzes the third question raised¾reversing the order of the questions, as did the general advocate in his conclusions¾ reformulating, at the same time, the question raised by the PSC. On this basis, the CJEU considers that the referring court is essentially asking whether (i) article 5(1) Damages Directive must be interpreted as meaning that a Commission decision declaring an infringement of EU competition law in the form of a vertical restriction by object is sufficient to establish the plausibility of a claim for damages, and (ii) the answer to that question is affected by the fact that that decision was made at the end of a settlement procedure.

As was suggested by the conclusions of Advocate General Maciej Szpunar, the CJEU clarified that the administrative finding of the infringement has unquestionable probative value, but it does not exhaust the plausibility assessment required under article 5(1). It concludes that an administrative decision finding an infringement of EU competition law in the form of a vertical restriction by object is not sufficient to establish the plausibility of a claim for damages, rather it serves to prove the element of infringement, but it does not predetermine the existence of harm or the causal link.

Therefore, it cannot be understood that the disclosure requested on the basis of article 5(1) Damages Directive is automatic merely due to the existence of the decision, rather that the applicant should indicate, even if in a preliminary and reasoned manner, how the sanctioned acts may have caused damage to those they represent and why the requested documents are relevant and proportionate to prove those points. The CJEU specifies that this conclusion holds even if the administrative decision was made in a settlement procedure and even if the infringement was by object, because neither the nature of the procedure nor the type of limitation replace the civil law requirements of harm and causal link.

Lastly, in its second question, the referring court asks about the application of article 5(1) Damages Directive and, in essence, whether it must be interpreted as meaning that proving the plausibility of an action for damages, within the meaning of that provision, requires proving that it is more likely than not that the conditions for liability for an infringement of competition law are met.