On November 10, 2022, in a judgment on a request for a preliminary ruling on the interpretation of Article 5(1) of Directive 2014/104 (the “Damages Directive”) and the scope of its rules on evidence production, the Court of Justice confirmed that national courts could require defendants to disclose evidence that did not exist at the time of the court proceedings (“ex novo evidence”)— by compiling or classifying knowledge, information or data in their possession— rather than to merely produce documents that already exist. In this instance, the applicants were seeking price data to quantify the artificial price increase caused by a cartel. The Court of Justice considered that the need to ensure the effective implementation of EU competition law could justify this interpretation, provided that national courts limited disclosure of ex novo evidence to necessary and proportionate requests. This ruling will increase the burden of follow-on litigation on companies and, in particular, the time and costs of carrying out disclosure.
In July 2016, five European truck manufacturers settled a cartel investigation with the Commission. This decision led to hundreds of follow-on damages cases before Spanish courts as well as in other Member States.
In March 2019, 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”. The applicants claimed the evidence requested was necessary to quantify the artificial price increase caused by the cartel, by carrying out a comparison of recommended prices before, during and after the cartel period. Specifically, they requested a list of models manufactured during an approximately 38-year period (1990 to 2018), classified by year and by certain characteristics, as well as the ex-factory (gross) price for each model on the list, and finally, the “total delivery cost” for those models. The defendants argued that the Damages Directive did not allow the national court to request the disclosure of such evidence because it did not “lie in their control” but needed to be drawn up on an ad hoc basis.
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 Spanish court asked whether Article 5(1) could cover the disclosure of evidence created by compiling or classifying information, knowledge, or data that had not been compiled or classified to date.
The Court of Justice judgment
The Court of Justice considered the issue based on a textual, contextual, and teleological interpretation of the relevant EU provision:
- Textual interpretation. The Court of Justice observed that the plain wording of Article 5(1), and specifically the terms “in […] control”, suggested that it only concerned pre-existing evidence.
- Contextual interpretation. However, a consideration of this phrase in the context of the Directive’s recitals and other provisions led the Court of Justice to conclude that it amounted to a mere description of the information asymmetries often existing in competition law disputes, and the factual situation the EU legislature intended to remedy, and did not preclude an interpretation that would require defendants to prepare and disclose new material.
- Teleological interpretation. The Court of Justice observed that the Damages Directive was intended to facilitate private litigation, which was viewed as necessary to ensure full compliance with Articles 101 and 102 TFEU, while providing a direct remedy for any damages suffered. Allowing courts to require the production of ex novo evidence would advance this objective.
Thus, the Court of Justice considered that Article 5(1) of the Damages Directive allowed national courts to require companies to process information or otherwise create new documents for disclosure purposes. It stressed, however, that national implementation of the Damages Directive requires strict supervision by the national courts, which must determine whether such requests are proportionate and necessary on a case-by-case basis. The national courts will weigh up factors in favour of disclosure, such as the relevance of the requested evidence, its significance in the damages claim and whether the requested evidence is sufficiently targeted, against the time, cost and workload involved, to assess the overall proportionality of the request.
Claimants to receive access to the evidence prepared ex novo
Claimants will approve of the Court of Justice’s approach, as it will facilitate their cases and create additional opportunities to put pressure on defendants during discovery. This being said, the disclosure of ex novo evidence will still require national courts to agree that claimants’ requests for such evidence are proportionate. The extent to which this judgment will change access to evidence in follow-on litigation will therefore now depend on the practice of national courts. This will entail the emergence of national law principles to assess when such ex novo document requests are justified.
 AD and others v. Paccar Inc, DAF TRUCKS NV, DAF Trucks Deutschland GmbH (Case C-163/21) (“AD and others judgment”). The Court of Justice’s reasoning largely followed Advocate General Szpunar’s opinion (see our April 2022 EU Competition Law Newsletter).
 AD and others judgment, para. 20.
 AD and others judgment, para. 20.
 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, para. 9.
 AD and others judgment, para. 21.
 AD and others judgment, para. 39.
 AD and others judgment, para. 49.
 AD and others judgment, paras. 55-56 and 62.
 AD and others judgment, para. 69.
 AD and others judgment, para. 68.
 AD and others judgment, paras. 64 and 68.