Factual background

On 19 July 2016, the European Commission adopted a settlement decision imposing a fine of EUR 2.93 billion in total on MAN, Volvo/Renault, Daimler, Iveco and DAF for their participation in the European Trucks Cartel. On 27 September 2017, the Commission also imposed a fine of EUR 880 million on Scania for its participation in the same infringement.

On March 25, 2019, AD and Others (“the Claimants”) filed an action for damages against PACCAR, DAF Trucks NV and DAF Trucks Deutschland GmbH (“the Defendants”) in front of the Commercial Court n°7 of Barcelona (the “Barcelona Court”).

Pursuant to Article 283a of the Spanish Ley de Enjuiciamiento Civil (Civil Procedure Law), the Claimants requested the Barcelona Court to grant them access to evidence held by the Defendants, in particular documents compiled or classified in a certain way, and which might not have existed prior to the request. The Defendants counterargued that, to comply with such a request, which goes beyond a simple injunction to disclose existing evidence, would be a disproportionate demand on them.

In its request for a preliminary ruling, the Barcelona Court asked the Court of Justice of the European Union (the “CJEU”) whether, in accordance with the provisions of Directive 2014/104/EU (the “EU Damages Directive”) on disclosure of evidence, a request could relate only to existing evidence in the possession of defendants and third parties or also to documents which the latter must create ex novo by aggregating or classifying information in their possession.

Discussion

Ratione temporis application of Art. 5(1)

In its judgment, while considering Art. 5(1) of the Damages Directive to be procedural in nature, the CJEU confirms its temporal application to the specific case in accordance with Art. 22 paragraph 2 of the Directive (paragraphs 35 and 36). 

The applicability of Art. 5(1) to ex novo documents

At the beginning of its analysis on the interpretation of Art. 5(1) of the Damages Directive, the CJEU refers to its well-established case law on the interpretation of provisions of EU law, according to which due account must be taken not only of the wording of a specific provision, but also of the context in which it is adopted and the purpose of the overall legislation of which this provision forms a part (paragraph 38).

Art. 5(1) of Directive 2014/104 reads as follow: “Member States shall ensure that […] national courts are able to order the defendant or a third party to disclose relevant evidence which lies in their control, subject to the conditions set out in this Chapter. Member States shall ensure that national courts are able, upon request of the defendant, to order the claimant or a third party to disclose relevant evidence.” (Emphasis added).

The wording of Art.5(1) does indeed, as rightly pointed out by the referring court, raise questions as to whether the disclosure of evidence applies as well to ex novo documents to be created by the Defendants.

In considering the objectives of the Damages Directive, while pointing out its recitals and introductory articles, the CJEU specifies that, for the purpose of strengthening private antitrust enforcement and facilitating actions for damages, the disclosure of “relevant evidence” also covers evidence which the infringer or third party to whom the request for disclosure is addressed must create ex novo by compiling or classifying information, knowledge, or data in its possession (paragraph 69).

In that regard, the CJEU once again emphasizes the existence of a considerable asymmetry of information between the infringer, who is aware of the facts of which he is accused and of the evidence relating thereto, and the injured party to whom such evidence, particularly in the case of secret agreements, is not available from the outset (paragraphs 46 and 59). In this respect, on the one hand, the CJEU states that restricting the disclosure by infringers or third parties to only unprocessed, pre-existing and possibly very numerous documents would undermine the utility of a request for disclosure of evidence (paragraph 61). On the other hand, the CJEU emphasizes the key role of national judges in ensuring that disclosure of evidence, including documents created ex novo from pre-existing evidence under the control of the defendant or a third party, is not excessive or too general in nature and does not impose a disproportionate burden on the defendant or third party concerned, either by reason of the cost or the workload (including the time period in relation to which the documentation is sought), that such a request would entail (paragraphs 64 and 68).

With this judgement, Art. 5(1) has been interpreted broadly by the CJEU both as regards the evidence to be disclosed (including ex novo information, documents, or data) and the parties to whom such a request might be addressed (infringers or third parties). In addition, the CJEU confirms in passing that the (necessary but proportionate) costs and workload incurred in complying with a request for disclosure of (comprehensively provided) evidence lies with the infringer(s) or the third party.

Conclusion

From the claimant’s perspective, this interpretation could have a positive impact on the complex (and costly) process of gathering relevant evidence to demonstrate the existence and scope of the damages suffered. The ability to obtain a court-ordered disclosure of ex novo documents agglomerating information, data or knowledge that would otherwise be scattered or unintelligible is likely to relieve the claimant, to some extent, from the burden of gathering of relevant evidence regarding the scope of the claim and the quantum thereof.

It seems nonetheless relevant to underline, in the light of this judgment, the importance for claimants to establish comprehensive parameters in their application for disclosure of evidence to facilitate the application of the proportionality assessment by national courts.

The judgment also has practical significance in relation to documents that were destroyed after the general retention periods expired. An evidentiary compilation, aggregation or classification of information, knowledge and data relating to these destroyed documents should still be possible ex novo and post-cartel for defendants who already acted in bad faith during the duration of their secret infringement. This could considerably help injured parties suffering from information asymmetry and thus contribute to an effective enforcement of their right to compensation.

By Natacha Espelta, Vasil Savov and Théo Mayer