On April 7, 2022, Advocate General Szpunar delivered his opinion on the interpretation of Article 5(1) of Directive 2014/104 (the “Damages Directive”) and on the scope of its rules on evidence production. The Advocate General called on the Court of Justice to allow national courts to require defendants to disclose evidence of a type that would require the defendant to compile or classify information rather than merely produce existing material. The Advocate General considered that, as long as national courts limit such disclosure of so-called “ex novo evidence” to relevant, necessary, and proportionate requests, this interpretation is justified by the need for effective implementation of EU competition law. The position is unsurprising but—if upheld to by the Court of Justice—may further increase the burden of follow-on litigation on companies.
In July 2016, five European truck manufacturers settled a cartel investigation with the Commission. The settlement decision led to hundreds of follow-on damages cases before the national courts of multiple Member States.
In March 2019, in the context of one of these cases, a claimant requested the Court of First Instance of Barcelona to order the disclosure of evidence pertaining to the calculation of potential harm suffered by the company. Article 5(1) of the Damages Directive allows national courts to order the disclosure, by the defendant or a third party, of relevant evidence “which lies in their control.” Part of the evidence requested in this case was not pre-existing and required an ex novo comparison of recommended prices before, during and after the infringement period. The defendants argued that the Damages Directive did not allow the national court to request such evidence, as it did not “lie in their control”, and would require them to compile a new analysis.
In February 2020, the Spanish court sought guidance from the Court of Justice on the interpretation of Article 5(1) of the Damages Directive. Specifically, the Court of Justice was asked whether Article 5(1) could cover the disclosure of potential evidence created by compiling or classifying information, knowledge, or data.
Advocate General’s opinion
In his opinion, Advocate General Szpunar considered the issue through three interpretational lenses of EU law: textual, systematic, and teleological.
- Textual interpretation. While the textual interpretation of Article 5(1) and recitals of the Damages Directive did not enable an unequivocal conclusion, the Advocate General argued that the text did not preclude an interpretation that would require defendants to prepare and disclose new material.
- Systematic interpretation. A systematic interpretation pointed towards an affirmative answer to the Spanish court’s question. The Advocate General interpreted the Damages Directive’s requirement that the national court consider the scope and cost of disclosure of evidence as implying that the disclosure might require performing tasks that go beyond the mere collection of documents.
- Teleological interpretation. A teleological interpretation would favor the possibility for courts to require the production of ex novo evidence to ensure the effectiveness of Articles 101 and 102  If evidence which required companies to compile or otherwise process data, were excluded, this would create significant barriers to private enforcement.
Thus, the Advocate General considered that allowing the disclosure of evidence that requires companies to process information or otherwise create new documents is in line with, and indeed required by, the objectives of the Damages Directive.
The Advocate General also stressed, however, that the Damages Directive requires strict supervision by the national courts. It is for these courts to determine whether such requests are proportionate and necessary on a case-by-case basis.
Claimants to receive access to the evidence prepared ex novo?
The Court of Justice will now decide whether or not to follow the approach proposed by Advocate General Szpunar. Claimants will hope it does, as this would ease their cases and create an additional source of pressure on defendants during discovery. That said, even if the Court of Justice were to follow the Advocate General’s approach, the disclosure of ex novo evidence would still require national courts to agree that claimants’ requests for such evidence are proportionate. The extent to which this case will change access to evidence in follow-on litigation will therefore depend both on the Court of Justice’s judgment and how national courts apply it in practice.
 AD and others v. PACCAR Inc, DAF TRUCKS NV, DAF Trucks Deutschland GmbH (“AD and others”) (Case C-163/21), opinion of Advocate General Szpunar, EU:C:2022:286.
 Ibid., para. 9.
 Ibid., para. 9.
 Ibid., para. 10.
 Ibid., para. 79.
 Ibid., para. 84.
 Ibid., para. 83.
 Ibid., para. 86.
 Ibid., para. 90.
 Ibid., para. 89.