Opinion of the Advocate General — ECLI:EU:C:2022:286
Date: 2022-04-07
Language of the case: Spanish
Subject matter: Competition;Agreements, decisions and concerted practices;Dominant position
Procedure: Reference for a preliminary ruling
Origin: Spain

summary of which was published in the Official Journal of the European Union of 6 April 2017 (OJ 2017 C 108, p. 6). The defendants in the main proceedings are among the addressees of that decision. 18 In that decision, the Commission found that 15 truck manufacturers, including the defendants in the main proceedings, had participated in a cartel in the form of a single and continuous infringement of Article 101 TFEU and Article 53 of the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3) concerning collusive arrangements on pricing and gross price increases for medium and heavy trucks in the EEA. 19 As regards the defendants in the main proceedings, that infringement was established for the period from 17 January 1997 to 18 January 2011. 20 On 25 March 2019, the applicants in the main proceedings, having purchased trucks capable of falling within the scope of the infringement which was the subject of Decision C(2016) 4673 final, applied to the Juzgado de lo Mercantil no 7 de Barcelona (Commercial Court No 7, Barcelona, Spain), the referring court, pursuant to Article 283a(a) of the Code of Civil Procedure, for access to the evidence held by the defendants in the main proceedings. In that regard, the applicants in the main proceedings argued that it was necessary to obtain certain types or means of proof in order to quantify the artificial price increase, in particular to carry out a comparison of recommended prices before, during and after the cartel period concerned. 21 At the hearing before the referring court of 7 October 2019 and in the context of their observations on the possible referral to the Court of Justice under Article 267 TFEU, the defendants in the main proceedings, for their part, relied, inter alia, on the fact that some of the documents requested had to be drawn up on an ad hoc basis and that such an obligation entails an excessive burden on them, going beyond a mere ‘order to disclose’ evidence, which is contrary in particular to the principle of proportionality. 22 According to the referring court, it is apparent from the provisions of both Directive 2014/104 and the Code of Civil Procedure, as amended by Royal Decree-Law 9/2017, regulating the disclosure of relevant evidence that it may, at the request of one of the parties, require the claimant, the defendant or a third party to ‘disclose relevant evidence which lies in their control’. 23 In the present case, the request to disclose evidence relates to documents which, as requested, are likely not to have existed prior to that request, which would therefore require the defendants in the main proceedings to carry out work to prepare them, consisting of the compiling and classification of data in accordance with the parameters defined by the applicants in the main proceedings. According to the referring court, that task goes beyond mere research and selection of documents already in existence or the mere making available to the applicants in the main proceedings of all the data concerned, subject to confidential treatment, because it involves bringing together in a new document, on a digital or other medium, the information, knowledge or data in the control of the party to whom the request to disclose evidence is addressed. 24 The need for the document whose disclosure is requested to have existed prior to the request of which it is the subject matter appears to follow from the wording of the first subparagraph of Article 5(1) and from recital 14 of Directive 2014/104, which refers respectively to ‘relevant evidence which lies in their control’ and to ‘evidence … held exclusively by the opposing party’, which, according to the referring court, confirms the idea that the requested document must have existed prior to the request of which it is the subject matter and is not to be created following that request. The notion that the document must already exist is also apparent from the requirement that the request concerned must relate to the ‘relevant categories of evidence circumscribed as precisely and as narrowly as possible on the basis of reasonably available facts in the reasoned justification’, in accordance with Article 5(2) and recital 16 of that directive. The exclusion of documents drawn up ex novo from documents which may be requested under Article 5 of that directive can also be inferred from the fact that the directive mentions the disclosure of or access to evidence, in this case documentary evidence, but does not refer to the disclosure of or access to information, knowledge or data. 25 In that regard, the referring court sets out its doubts, considering that some of the arguments put forward in favour of a broader interpretation could be well founded. Thus, a restrictive interpretation in relation to the disclosure of evidence could be regarded as compromising the right to full compensation for the damage suffered. Moreover, Directive 2014/104 refers to the costs and expenses of disclosing evidence as an element of the principle of proportionality for the purposes of accepting that disclosure, which could mean that the party from whom evidence is sought is required to carry out work that may entail costs and may therefore go beyond the mere search for and delivery of pre-existing documents. 26 In those circumstances, the Juzgado de lo Mercantil no 7 de Barcelona (Commercial Court No 7, Barcelona) decided to stay proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Must Article 5(1) of Directive [2014/104] be interpreted as meaning that the disclosure of relevant evidence refers exclusively to existing documents in the control of the defendant or a third party or, in contrast, can Article 5(1) also include the disclosure of documents that must be created ex novo by the party to whom the request for information is made by compiling or classifying information, knowledge or data held by it?’ Consideration of the question referred The applicability ratione temporis of the first subparagraph of Article 5(1) of Directive 2014/104 27 It should be recalled at the outset, as regards the application ratione temporis of Directive 2014/104, that that directive contains a special provision which explicitly states the conditions for the temporal application of its substantive and non-substantive provisions (see judgment of 22 June 2022, Volvo and DAF Trucks, C‑267/20, EU:C:2022:494, paragraph 35 and the case-law cited). 28 First, under Article 22(1) of Directive 2014/104, Member States had to ensure that the national measures adopted pursuant to Article 21 thereof in order to comply with the substantive provisions of that directive do not apply retroactively. 29 Second, under Article 22(2) of Directive 2014/104, Member States had to ensure that any national provisions other than those referred to in Article 22(1) of that directive do not apply to actions for damages of which a national court was seised prior to 26 December 2014, the date of adoption of the directive. 30 Therefore, in order to determine the temporal applicability of the provisions of Directive 2014/104, it is necessary to establish, in the first place, whether or not the provision concerned constitutes a substantive provision, it being specified that that question must be assessed, in the absence of a reference to national law in Article 22 of Directive 2014/104, in the light of European Union law and not in the light of the applicable national law (see, to that effect, judgment of 22 June 2022, Volvo and DAF Trucks, C‑267/20, EU:C:2022:494, paragraphs 38 and 39). 31 In that regard, first, it should be noted that the first subparagraph of Article 5(1) of that directive is intended to give national courts the power to order the defendant or a third party, under certain conditions, to disclose relevant evidence which lies in their control. 32 In so far as it requires the Member States to confer particular powers on those courts when examining disputes relating to actions for damages which seek compensation for damage suffered as a result of infringements of competition law, that provision seeks to remedy the information asymmetry which characterises, in principle, those disputes to the detriment of the injured party, as stated in recital 47 of Directive 2014/104, and which makes it more difficult for that person to obtain the information necessary for bringing an action for damages (see, to that effect, judgment of 22 June 2022, Volvo and DAF Trucks, C‑267/20, EU:C:2022:494, paragraphs 55 and 83). 33 Second, since the specific purpose of the first subparagraph of Article 5(1) of Directive 2014/104 is to make it possible for the claimant in such disputes to counteract the deficit in the information that it has, it does indeed have the effect of making available to that party, upon an application to the national court to that end, advantages which it did not previously possess. The fact remains that, as the Advocate General observed, in essence, in point 57 of his Opinion, the subject matter of the first subparagraph of Article 5(1) relates only to the procedural measures applicable before the national courts, conferring on them particular powers in order to establish the facts relied on by the parties to disputes concerning actions for damages in respect of such infringements and does not therefore directly affect the legal situation of those parties, in that that provision does not relate to the constituent elements of non-contractual civil liability. 34 In particular, it does not appear that the first subparagraph of Article 5(1) of Directive 2014/104 imposes new substantive obligations on any of the parties to the dispute concerned, which would allow this provision to be considered substantive within the meaning of Article 22(1) of that directive (see, by analogy, judgment of 22 June 2022, Volvo and DAF Trucks, C‑267/20, EU:C:2022:494, paragraph 83). 35 It must therefore be concluded that the first subparagraph of Article 5(1) of Directive 2014/104 is not one of the substantive provisions of that directive, within the meaning of Article 22(1) thereof, and that it therefore numbers amongst the other provisions covered by Article 22(2) of that directive, it being, for those purposes, a procedural provision. 36 In the second place, since the action in the main proceedings was brought, in the present case, on 25 March 2019, that is to say after 26 December 2014 and after the date of transposition of Directive 2014/104 into Spanish law, the first subparagraph of Article 5(1) of that directive is applicable ratione temporis to that action under Article 22(2) of that directive, with the result that it is necessary to provide an answer on the substance to the referring court. Substance 37 By its question, the referring court asks, in essence, whether the first subparagraph of Article 5(1) of Directive 2014/104 must be interpreted as meaning that the reference therein to the disclosure of relevant evidence in the control of the defendant or a third party relates only to documents in their control which already exist or also relates to those documents that the party to whom the request to disclose evidence is addressed must create ex novo by compiling or classifying information, knowledge or data in its possession. 38 As regards the scope of the words ‘in … control’ in the first subparagraph of Article 5(1) of Directive 2014/104, it is necessary, in accordance with the settled case-law of the Court, to consider not only the wording of the provision of EU law which must be interpreted but also its context and the objectives of the legislation of which it forms part (judgment of 28 April 2022, Nikopolis AD Istrum 2010 and Agro – EKO 2013, C‑160/21 and C‑217/21, EU:C:2022:315, paragraph 30 and the case-law cited). 39 In the first place, the wording of that provision leads to it being considered, as the referring court noted and as has been observed in paragraph 24 of this judgment, that, as regards a request to disclose evidence made by a claimant to the national court concerned, it concerns only pre-existing evidence. 40 In the second place, as regards the context of the first subparagraph of Article 5(1) of Directive 2014/104, first, it is necessary to take into account the definition of the term ‘evidence’ in Article 2(13) of that directive. The scope of that term determines what lies ‘in [the] control’ of the defendant or a third party, within the meaning of the first provision. 41 According to Article 2(13) of Directive 2014/104, that term covers ‘all types of means of proof admissible before the national court seized, in particular documents and all other objects containing information, irrespective of the medium on which the information is stored’. In addition to the fact that the word ‘evidence’ is itself a general word, that definition supports, as regards the nature of the evidence whose disclosure a national court may order, a broad interpretation of the term ‘evidence’ within the first subparagraph of Article 5(1) of that directive. In that regard, no distinction is made, in that definition, on the basis of whether the evidence whose disclosure is sought is pre-existing or not. It follows that the evidence referred to in the latter provision does not necessarily correspond to pre-existing ‘documents’, as the referring court suggests in its question referred for a preliminary ruling. 42 That conclusion is supported by recitals 28 and 39 of Directive 2014/104, which, respectively, refer to ‘evidence that exists independently of the proceedings of a competition authority’ and ‘evidence other than that in [the] possession’ of the infringer, ‘such as evidence already acquired in the proceedings or evidence held by other parties or third parties’, thus recalling the diverse range of evidence concerned, in particular as regards the persons holding it. 43 Second, it should be noted that the first subparagraph of Article 5(1) of Directive 2014/104 consists of two sentences. The first provides that a claimant who has substantiated the plausibility of his or her claim for damages by presenting sufficient ‘reasonably available … evidence’ and facts may obtain from the national court seised an order requiring the defendant or a third party to disclose ‘relevant evidence which lies in their control’, subject to the conditions set out in Chapter II of that directive, entitled ‘Disclosure of evidence’. The second states that the defendant must be able to request that court to order the claimant or a third party to disclose ‘relevant evidence’. It is therefore important to note the difference in wording between the first and second sentences of the first subparagraph of Article 5(1) of Directive 2014/104, since only the first sentence uses the words ‘which lies in their control’. 44 Recital 14 of Directive 2014/104 is particularly informative as regards the ratio legis of those two sentences, since it states that ‘the evidence necessary to prove a claim for damages is often held exclusively by the opposing party or by third parties, and is not sufficiently known by, or accessible to, the claimant’, which is why ‘strict legal requirements for claimants to assert in detail all the facts of their case at the beginning of an action and to proffer precisely specified items of supporting evidence’ cannot be imposed without unduly impeding the effective exercise of the right to compensation guaranteed by the TFEU. 45 Consequently, by referring to evidence ‘in [the] control’ of the defendant or a third party, the EU legislature is, first and foremost, making a factual observation illustrating the information asymmetry which it seeks to remedy, as the Advocate General stated in point 72 of his Opinion. It is also that factual observation which explains why the words ‘which lies in their control’ are not repeated in the second sentence of the first subparagraph of Article 5(1) of Directive 2014/104. Since the second sentence relates to a request to disclose evidence submitted this time by the defendant and since, ‘the evidence necessary … is often … not sufficiently known by … the claimant’, it would have been contradictory to require that that evidence be ‘in [the] control’ of the latter. That is, moreover, the reason why that provision merely requires it to provide ‘reasonably available … evidence [that is] sufficient’, given the limited information generally available to it at the time of lodging an action for damages. 46 In that regard, recital 15 of Directive 2014/104, while once again recalling that the reason for the existence of the first subparagraph of Article 5(1) of that directive is that competition law disputes are characterised by an information asymmetry between the parties concerned, states, first, that, in order to resolve that difficulty ‘it is appropriate to ensure that claimants are afforded the right to obtain the disclosure of evidence relevant to their claim, without it being necessary for them to specify individual items of evidence’ and, second, that ‘those means should also be available to defendants in actions for damages, so that they can request the disclosure of evidence by those claimants’. 47 Accordingly, it is clear from that recital, as the Advocate General observed in point 76 and footnote 27 to his Opinion, that the EU legislature placed the emphasis on the ‘relationship between the evidence requested and the claim for damages’, which is of critical importance for the national court concerned in order for it to be able to rule appropriately, and in compliance with the principle of equality of arms between the parties to the dispute before it, on a request submitted to it for disclosure of evidence. 48 Likewise, but even more clearly, recital 16 of Directive 2014/104 expresses the need for the national court seised to order ‘the disclosure of specified items of evidence’ or ‘categories of evidence’, which should be identified by reference to the common characteristics of their constituent elements, such as, for example, as regards documents, ‘the time during which they were drawn up’. 49 Thus, a reading of those recitals elucidates the wording of the first subparagraph of Article 5(1) of Directive 2014/104 and makes it clear that the reference made in that provision to relevant evidence in the control of the defendant or a third party merely reflects, as recalled in paragraph 44 of the present judgment, the observation that those third parties in fact ‘often’ hold such evidence, which, understood generically, may be grouped together, as is pointed out in the preceding paragraph of the present judgment, into ‘categories of evidence’ or may concern only ‘items of evidence’. To put it another way, the use of the words ‘which lies in their control’ seeks to take into account a factual situation which the EU legislature intends to remedy. 50 Third, that analysis is supported by a reading of the first subparagraph of Article 5(1) of Directive 2014/104 in the light of paragraphs 2 and 3 of that article; paragraph 2 of which sets out the requirement that the request to disclose evidence must be specific, whereas paragraph 3 of that article refers to the application of the principle of proportionality in the matter. 51 Thus, Article 5(2) of Directive 2014/104 requires national courts to limit the disclosure of evidence to ‘specified items of evidence or relevant categories of evidence circumscribed as precisely and as narrowly as possible on the basis of reasonably available facts in the reasoned justification’. 52 For its part, Article 5(3)(b) of that directive provides that the national courts seised are required to take into consideration, in order to limit ‘the disclosure of evidence to that which is proportionate’, inter alia, ‘the scope and cost of disclosure, especially for any third parties concerned, including preventing non-specific searches for information which is unlikely to be of relevance for the parties in the procedure’. 53 Such a provision presupposes, implicitly but necessarily, that the cost of disclosing evidence may, where appropriate, significantly exceed that corresponding to the mere transmission of physical media, in particular documents, in the control of the defendant or a third party. 54 In the third place, it must be ascertained whether that analysis is compatible with the purpose of the first subparagraph of Article 5(1) of Directive 2014/104. 55 It must be borne in mind that, in adopting Directive 2014/104, the EU legislature started from the finding that combating anticompetitive conduct on an initiative taken by the public sphere, that is to say, the Commission and the national competition authorities, was not sufficient to ensure full compliance with Articles 101 and 102 TFEU and that it was important to facilitate the possibility, for the private sphere, of helping to achieve that objective, as recital 6 of that directive illustrates. 56 That participation by the private sphere in the financial penalisation of anticompetitive conduct and, therefore, also in its prevention, is all the more desirable because it is capable not only of providing a remedy for the direct damage alleged to have been suffered by the person in question, but also for the indirect harm done to the structure and operation of the market, which was not able to reach full economic efficacy, in particular as regards benefits to the consumers concerned (see, to that effect, judgment of 6 October 2021, Sumal, C‑882/19, EU:C:2021:800, paragraph 36). 57 In order to make it possible and, at the same time, avoid the misuse of such procedures, Directive 2014/104 establishes a balancing of ‘the legitimate interests of all parties and third parties concerned’, in accordance with Article 5(3) of that directive. 58 In that regard, the EU legislature took care, in particular in Article 6(5) of that directive, to preserve the prerogatives of the Commission and national competition authorities by ensuring that the obligation to disclose evidence on their part or that of the undertakings covered by one of their investigations did not adversely affect them. 59 To attain the objective set out in paragraph 55 above presupposed the implementation of tools capable of remedying the information asymmetry between the parties to the dispute since, by definition, the infringer knows what it has done and or has been accused of doing, if anything, and knows what evidence may have been used in such a case by the Commission or the national competition authority concerned to demonstrate its participation in anticompetitive conduct contrary to Articles 101 and 102 TFEU, whereas the victim of the damage caused by that behaviour does not have such evidence. 60 It is in the light of those considerations relating to the purpose of the first subparagraph of Article 5(1) of Directive 2014/104 that that provision must be interpreted. 61 First, it should be observed, from a practical point of view, that for the claimant to be provided only with unprocessed, pre-existing and possibly very numerous documents would correspond only imperfectly with its request, whereas that provision must, on the contrary, be applied effectively so as to provide injured parties with tools that are capable of compensating for the information asymmetry between the parties to a dispute. 62 Second, to exclude at the outset the possibility of requesting disclosure of documents or other evidence that the party to whom the request is addressed would have to create ex novo would, in some cases, lead to the creation of obstacles making the private enforcement of EU competition rules more difficult, whereas, as stated in paragraph 55 of the present judgment, facilitating that enforcement is the primary objective of Directive 2014/104, which is illustrated by recital 6 thereof. 63 That interpretation cannot be called into question on the ground that it would upset the balance between, on the one hand, the claimant’s interest in obtaining information relevant to its case and, on the other hand, the interest of the person ordered to disclose that information in being protected from ‘information fishing’, as described in recital 23 of that directive, and an excessive burden in that regard. 64 It follows, in particular, from Article 5(2) and (3) of Directive 2014/104 that the EU legislature has established a mechanism for balancing the interests involved, subject to strict review by the national courts before which proceedings have been brought, which must, as is apparent from paragraphs 51 and 52 above, carry out a rigorous examination of the request before them, as regards the relevance of the evidence requested, the link between that evidence and the claim for damages submitted, the sufficiency of the degree of precision of that evidence and the proportionality of that evidence. It is therefore for those courts to assess whether the request for the disclosure of evidence created ex novo from pre-existing evidence in the control of the defendant or a third party is likely, having regard, for example, to its excessive or too-general nature, to impose a disproportionate burden on the defendant or the third party concerned, whether as a result of the cost or workload that that request would entail. 65 In that regard, in view of the prerogatives enjoyed by the Commission and the national competition authorities in relation to the inspection and disclosure of documents, there can be no question of transposing the principles applicable to combating anticompetitive conduct at the initiative of the public sphere to actions taken on a private sphere initiative. 66 Nevertheless, having regard to the criteria referred to in paragraphs 51 and 52 of the present judgment, which the national courts seised must ensure are met, the interpretation of the first subparagraph of Article 5(1) of Directive 2014/104 cannot result in defendants to main proceedings taking the place of claimants to main proceedings in their task of demonstrating the existence and scope of damage suffered. That reasoning applies, a fortiori, to proceedings in which no penalty has been previously imposed by the Commission or by a national competition authority for unlawful conduct. 67 In addition, as is stated in recital 53 of that directive, its provisions must be implemented in compliance with the fundamental rights and principles recognised by the Charter of Fundamental Rights of the European Union. 68 Thus, in that context, the courts must take into account, in accordance with the principle of proportionality, the appropriateness or otherwise of the workload and cost that the creation ex novo of physical media, in particular documents, entails and take into consideration all the circumstances of the case concerned, in particular having regard to the criteria listed in Article 5(3)(a) to (c) of that directive, such as the period of time in respect of which the disclosure of evidence is requested. 69 It follows from all the foregoing considerations that the answer to the question referred must be that the first subparagraph of Article 5(1) of Directive 2014/104 must be interpreted as meaning that the reference therein to the disclosure of relevant evidence in the control of the defendant or a third party also covers those documents which the party to whom the request to disclose evidence is addressed must create ex novo by compiling or classifying information, knowledge or data in its possession, subject to strict compliance with Article 5(2) and (3) of that directive, which requires the national courts seised to restrict the disclosure of evidence to that which is relevant, proportionate and necessary, taking into account the legitimate interests and fundamental rights of that party. Costs 70 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. On those grounds, the Court (Second Chamber) hereby rules: The first subparagraph of Article 5(1) of Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union must be interpreted as meaning that the reference therein to the disclosure of relevant evidence in the control of the defendant or a third party also covers those documents which the party to whom the request to disclose evidence is addressed must create ex novo by compiling or classifying information, knowledge or data in its possession, subject to strict compliance with Article 5(2) and (3) of that directive, which requires the national courts seised to restrict the disclosure of evidence to that which is relevant, proportionate and necessary, taking into account the legitimate interests and fundamental rights of that party. [Signatures] * Language of the case: Spanish.