Is the sanctioning decision sufficient to access sources of evidence?

Last June 12, the opinion of Advocate General Maciej Szpunar was published in Case C-286/24 (Meliá Hotels International, S. A. v. Associação Ius Omnibus), which address relevant questions on access to sources of evidence and the relationship between administrative decisions finding infringements of competition law and the viability of civil actions for damages based on such decisions.

The genesis of the preliminary ruling question is in the context of a declaratory action brought by Ius Omnibus, a Portuguese consumer protection association, against Meliá Hotels International, S.A. ("Meliá") based on the decision adopted by the European Commission on February 21, 2020 in Case AT.40528 - (Meliá (Holiday Pricing)), which found that Meliá had infringed Article 101 TFEU and Article 53 of the Agreement on the European Economic Area by contractually applying vertical practices that differentiated consumers on the basis of their nationality or country of residence.

Ius Omnibus brought an action before the court of first instance requesting the disclosure of certain documents in Meliá's possession. The request was made prior to the filing of a potential class action for damages.

The court of first instance granted Ius Omnibus' request, a decision that was confirmed in full by the Tribunal da Relação following an appeal filed by Meliá. Subsequently, Meliá filed an appeal in cassation before the Portuguese Supreme Court, which admitted the appeal and, after suspending the proceedings, decided to refer the matter to the Court of Justice of the European Union (CJEU) for a preliminary ruling.

The Portuguese Supreme Court raised the following questions concerning the interpretation of Article 5(1) of the Damages Directive, which allows the claimant to request the disclosure of evidence provided that he submits a reasoned statement of reasons containing those facts and evidence to which he reasonably has access, which are sufficient to justify the viability of his action:

1.   Is Article 5(1) of [Directive 2014/104] applicable to an action for access to evidence prior to the bringing of an action for damages within the meaning of Article 2(4) of that directive?

If the foregoing question is answered in the affirmative:

2.   Does the requirement as to the plausibility of the [claim of harm, arising from] Article 5(1) of [Directive 2014/104,] always compel the applicant to demonstrate that, in the case at issue, harm is more likely to have been caused to the consumers represented, in this instance those resident in Portugal, than not?

3.   May national courts base [satisfaction of] the criterion as to the plausibility of the [claim of harm, under] Article 5(1) of [Directive 2014/104,] exclusively on the existence of a decision adopted by the competent competition authorities[?] In particular, what bearing would it have on this analysis if the decision in question were one adopted as part of a settlement procedure relating to a vertical infringement by object of EU competition law?’

Insofar as the second and third questions arise only in the event that the CJEU answers the first question in the affirmative, the Advocate General clarifies that his conclusions are based on the assumption that the answer to the first question is affirmative, in the sense that the production of evidence may be requested prior to the filing of an action on the merits.

Likewise, the Advocate General decides to reverse the order of his examination, thus starting with the third question insofar as, if he had an affirmative answer, he would eliminate the need to answer the second question.

As we have just seen, the third question asks whether the existence of an administrative decision declaring the infringement of competition law is sufficient to prove the viability of an action for damages justifying the request for access to sources of evidence under the terms of Article 5.1 of the Damages Directive.

Well, the Advocate General argues that, although the finding of infringement has probative value in itself, it is not sufficient to ensure the viability of an action for damages, but the plaintiff must prove the existence of the rest of the requirements that give rise to civil liability for an infringement of the right of competition. That is, the existence of damage and the causal link between the damage and the sanctioned conduct (this last requirement is the only one that would be given by the administrative decision), regardless of the type of infringement in question. As a result, the Advocate General answers the third question as follows:

“Article 5(1) of Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union must be interpreted as meaning that a decision identifying an infringement of competition law is not sufficient to establish the plausibility of a claim for damages. The fact that that decision concerns a vertical restriction by object and was adopted as part of a settlement procedure does not call that consideration into question.”

Among the main reasons that lead Maciej Szpunar to this conclusion is the need to preserve the balance between the protection of the rights of the injured parties and the legal certainty of the defendants. In this way, it is avoided that the mere existence of an infringement automatically leads to the assumption of civil liability.

In relation to the second question, the Portuguese Supreme Court asked whether the probability requirement imposed by Article 5(1) of Directive 2014/104 requires a degree of probability according to which it is more likely that the requirements giving rise to liability are met than the contrary, or whether it is content with a lower degree of probability.

After analyzing the question, the Advocate General concludes that Article 5(1) of Directive 2014/104 does not require a degree of probability according to which it must be more probable that the conditions giving rise to liability are present than the contrary.