Background

In Case C-163/21 ‒ AD and Others v PACCAR Inc, DAF TRUCKS NV, DAF Trucks Deutschland GmbH, the Commercial Court 7 of Barcelona (Court) had sent a request for a preliminary ruling to the Court of Justice of the European Union (CJEU) containing questions on the temporal applicability of Directive 2014/104/EU (Directive), and the interpretation of its provision on disclosure of evidence inter partes. The referring court notably seeks to determine whether Article 5(1) of the Directive may also apply to the documents which must be created ex novo by the defendants, for example, by classifying or compiling the information in their possession.

Given that a level of uncertainty still surrounds several aspects of how national courts shall guarantee the effective judicial protection of claimants’ rights and remedy the existing information asymmetry in competition cases, the judgment by the CJEU will bring additional legal clarification. In the context of an increasing number of preliminary ruling procedures related to the Trucks cartel, AG Szpunar issued his Opinion on the application of Article 5(1) of the Directive on 7 April 2022.

Facts and procedure

In 2016, the European Commission adopted a settlement decision imposing a fine on several truck manufacturers for participating in an EEA-wide cartel. The claimants in the Barcelona procedure have purchased trucks and, following the Decision, filed an action for damages against the cartel members. On March 25, 2019, the claimants requested, pursuant to Article 283a of the Spanish Ley de Enjuiciamiento Civil, access to evidence held by the defendants. Precisely, they requested access not only to “raw” documents but also to evidence material compiled or classified in a certain way, namely a list of truck models manufactured between 1990 and 2018, classified by year and certain characteristics, gross prices for each model and ”total delivery costs”. The defendants argued that some documents required ad hoc preparation, although requests for disclosure pursuant to Article 5(1) of the Directive would be limited to pre-existing evidence.

With its referral for a preliminary ruling, the Court, in essence, asked the CJEU whether a request for disclosure concerns only evidence in the possession of the defendant or also documents that must be created ex novo by aggregating or classifying information in possession of the defendant.

The Advocate General’s Opinion

Applicability of the Directive

The AG starts with an analysis of the applicability of the Directive’s provision in the case at hand. It was not clear to the AG “whether the request for the disclosure of evidence at issue in the main proceedings was made in the context of proceedings in which the referring court had already been seised of an action for damages.” (para. 25). Before confirming that the Directive’s Article 5 applies to actions for which the national court was seized after December 2014 (para. 29), the AG reminds that the Member States are allowed to introduce rules that would lead to wider disclosure of evidence (para. 30). Moreover, even if the disclosure was requested before a claim for damages is brought, under certain circumstances, this would not hinder the Directive’s applicability (para. 51).

Concerning the temporal application of the Directive, the question by the Court does not raise difficulties. On the one hand, Articles 5 to 8 of the Directive together with the Spanish implementation rules are to be considered procedural (para. 56). On the other hand, procedural provisions of the Directive apply to actions for damages of which a national court was seised after 26 December 2014 (Article 22 of the Directive). Given that the action was brought in March 2019, the Directive is applicable ratione temporis to the case in question.

The Directive covers documents that may have to be created de novo

Concerning the assessment of the substance of the referred question, the AG proceeded to an interpretation of Article 5 and other relevant provisions of the Directive referring to “evidence”. The AG concluded that it is not sufficient to examine, in isolation, Article 5(1) and the relevant recitals (para. 74). He recalls that Article 2(13) of the Directive defines evidence as referring to “all types of means of proof admissible before the national court seized, in particular, documents and all other objects containing information,”, regardless of the medium in which the information is stored (para 77). Given that the Directive uses the concepts of “evidence” and “information” interchangeably, according to the AG, a textual interpretation of the Directive does not preclude the disclosure of documents that must be created ex novo (para. 79).

Further, it is important to consider not only the wording of the Directive but to duly consider its purpose. The AG stresses that a teleological interpretation “must lead to the conclusion that it is necessary to apply the competition rules effectively and, to that end, to provide injured parties with effective tools to balance the information asymmetry” (para. 85). Regarding disclosure of evidence, it is up to the national judges to balance the interests at stake on the basis, in particular, of the principles of necessity and proportionality (para. 89). According to the Opinion, the exclusion from the outset of the possibility of requesting the disclosure of documents that must be created de novo would “in some cases, lead to the creation of insurmountable barriers to the private enforcement of EU competition rules” (para 90).

The AG recognized that the disclosure by defendants of a large number of documents “may result in a procedural obstruction and may not remedy the information asymmetry.” On the contrary, even “unprocessed, and possibly numerous, documents which only imperfectly match the request and are compiled in a manner known only to their author could deprive Article 5(1) of the Directive of its practical effect” (para. 92).

Therefore, to remedy the information asymmetry toward injured parties, according to the AG, the disclosure of evidence under Article 5(1) of the Directive covers also documents to be produced de novo by compiling or classifying information. In any event, national courts have to limit the disclosure “to what is relevant, proportionate, and necessary” (para. 94) and consider the existence of alternatives such as an expert to carry out the work with the author of the documents to be compiled or classified (para. 95).

Comment

The AG’s Opinion opens the door for more effective disclosure of documents for the benefit of claimants for damages in EU competition cases. It makes clear that an interpretation of Article 5(1) that corresponds to the objectives of the Directive must lead to the conclusion that the EU competition rules can be applied effectively only when injured parties are provided with strong tools to balance the information asymmetry existing between injured parties and, typically, cartel members. Within the limits of proportionality, the disclosure encompasses documents that may have to be produced de novo by defendants, e.g. via compiling or classifying information, knowledge, or data in their possession. Otherwise, the disclosure of a large number of unprocessed documents which might even have been compiled in a manner known only to their author would result in a procedural obstruction and could deprive Article 5(1) of the Directive of its practical effect. The Opinion, if confirmed by the CJEU, would provide more legal certainty and clarify one further aspect of its high practical relevance in the private enforcement of competition law.

By Natacha Espelta, Juraj Siska, and Martin Seegers