Opinion of the Advocate General — ECLI:EU:C:2025:436
Date: 2025-06-12
Language of the case: Portuguese

summary of which was published in the Official Journal of the European Union of 2 June 2020 (OJ 2020 C 182, p. 9), (‘the decision of 21 February 2020’). 7 See point 20 of this Opinion. 8 Case C‑163/21, EU:C:2022:286. 9 In that case, a request for the disclosure of evidence would therefore be subject not only to the requirements laid down in Article 5(4) and (7) of Directive 2014/104, but to all the requirements laid down in that article. 10 See, recently, judgment of 22 October 2024, Kolin Inşaat Turizm Sanayi ve Ticaret (C‑652/22, EU:C:2024:910, paragraph 53). 11 See judgment of 10 November 2022, PACCAR and Others (C‑163/21, EU:C:2022:863, paragraph 43). 12 See, inter alia, judgment of 20 April 2023, Repsol Comercial de Productos Petrolíferos (C‑25/21, EU:C:2023:298, paragraph 39). 13 See, to that effect, judgment of 6 November 2012, Otis and Others (C‑199/11, EU:C:2012:684, paragraph 65). 14 See point 44 of the present Opinion. 15 For a comparative study, see Hornkohl, L., ‘The Presumption of Harm in EU Private Enforcement of Competition Law – Effectiveness vs Overcompensation’, EU and Comparative Law Issues and Challenges Series, 2021, pp. 34 to 36, and Malinauskaite, J., Cauffman, C., ‘The Transposition of the Antitrust Damages Directive in the Small Member States of the EU – A Comparative perspective’, Journal of European Competition Law & Practice, 2018, Vol. 9, No 8, pp. 509 and 511. 16 See judgment of 30 January 2020, Generics (UK) and Others (C‑307/18, EU:C:2020:52, paragraph 63). 17 See, a contrario, judgment of 18 November 2021, Visma Enterprise (C‑306/20, EU:C:2021:935, paragraph 71). 18 See point 50 of the present Opinion. 19 See point 53 of the present Opinion. 20 See point 44 of the present Opinion. 21 See, to that effect, judgment of 4 October 2024, FIFA (C‑650/22, EU:C:2024:824, paragraph 150). 22 See, by analogy, paragraph 28 of the Commission Notice on the conduct of settlement procedures in view of the adoption of Decisions pursuant to Article 7 and Article 23 of Council Regulation (EC) No 1/2003 in cartel cases (OJ 2008 C 167, p. 1). 23 See, to that effect, judgments of 29 June 2010, Commission v Alrosa (C‑441/07 P, EU:C:2010:377, paragraph 48), and of 28 January 2025, ASG 2 (C‑253/23, EU:C:2025:40, paragraph 44). 24 See points 65 and 66 of the present Opinion. 25 That is also the case of the term used in the Polish language version (‘uprawdopdobnienie’), which refers, according to Słownik języka polskiego PWN, Polskie Wydawnictwo Naukowe, https://sjp.pwn.pl/slowniki/uprawdopodobnienie, to the fact of making a hypothesis probable (‘sprawić, że coś staje się prawdopodobne’). 26 That provision was transposed into German law by Paragraph 33g(1) of the Gesetz gegen Wettbewerbsbeschränkungen (Law against restrictions on competition) of 26 June 2013 (BGBl. 2013 I, p. 1750), according to which claimants must demonstrate that their claim for damages is convincing (‘der glaubhaft macht, einen solchen Schadensersatzanspruch zu haben’). In its judgment of 4 April 2023, KZR 20/21, the Bundesgerichtshof (Federal Court of Justice, Germany) clarified that it is sufficient that there is a certain probability, based on specific evidence, that the claimant is entitled to bring an action for damages, and that an overwhelming probability is not required. 27 That provision was transposed into Polish law by Article 17(1) of the ustawa o roszczeniach o naprawienie szkody wyrządzonej przez naruszenie prawa konkurencji (Law of 21 April 2017 on compensation for harm caused by an infringement of competition law). That law establishes the criterion of probability (‘uprawdopodobnienie’) in respect of a claim for damages. Academic writers have observed that that law refers to the general rules of civil procedure. The criterion laid down in that provision should be interpreted as meaning that, in order for such a claim to be found to be plausible, the assertion of its existence must be reasonably acceptable, and its credibility, in the light of the evidence submitted, must not be negligible. The assessment of that claim is simplified and based on a prima facie evaluation rather than on a detailed analysis. See, in that regard, Machnikowski, P., in Lis-Zarrias K., Machnikowski, P. (ed.), Ustawa o roszczeniach o naprawienie szkody wyrządzonej przez naruszenie prawa konkurencji. Komentarz, CH BECK, Warsaw, 2018, paragraph 16. 28 See judgment of 10 November 2022, PACCAR and Others (C‑163/21, EU:C:2022:863, paragraph 44). 29 See, to that effect, judgment of 16 February 2023, Tráficos Manuel Ferrer (C‑312/21, EU:C:2023:99, paragraphs 42 to 44). 30 See Smith, M., ‘Civil liability and the 50%+ standard of proof’, The International Journal of Evidence & Proof, 2021, Vol. 25, No 3, p. 183. 31 See Rodger, B., ‘United Kingdom’, in Rodger, B., Sousa Ferro, M., Marcos, F. (ed.), The EU Antitrust Damages Directive: Transposition in the Member States, op. cit., p. 382. 32 See judgment of 10 November 2022, PACCAR and Others (C‑163/21, EU:C:2022:863, paragraph 43). 33 See point 84 of the present Opinion.