Case C‑57/21
RegioJet a.s.
v
České dráhy a.s.
(Request for a preliminary ruling from the Nejvyšší soud (Czech Republic))
Judgment of the Court (Second Chamber), 12 January 2023
(Reference for a preliminary ruling – Competition – Abuse of a dominant position – Rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union – Directive 2014/104/EU – Articles 5 and 6 – Disclosure of evidence – Evidence in a competition authority’s file – Proceedings relating to an infringement of competition rules pending before the European Commission – National proceedings relating to an action for damages with regard to the same infringement – Conditions for the disclosure of evidence)
1.        Competition – Actions for compensation for the harm caused by infringements of competition rules – Directive 2014/104 – Temporal application – Substantive provisions – Prohibition of retroactive application of national transposing legislation – Non-substantive provisions – Prohibition on the application of national transposing legislation to actions brought before 26 December 2014
(European Parliament and Council Directive 2014/104, Art. 22)
(see paragraphs 36-39)
2.        Competition – Actions for compensation for the harm caused by infringements of competition rules – Directive 2014/104 – Temporal application – Provisions intended to give national courts the power to order the disclosure of relevant evidence which lies in the control of the defendant or a third party – Non-substantive provisions
(European Parliament and Council Directive 2014/104, Art. 5(1), first subparagraph, Arts 6 and 22(2))
(see paragraphs 40-47)
3.        Competition – Actions for compensation for the harm caused by infringements of competition rules – Directive 2014/104 – Provisions intended to give national courts the power to order the disclosure of evidence included in the file of a competition authority – Ability for a national court to order the disclosure of evidence despite the judicial proceedings being stayed in the light of proceedings pending before the Commission – Whether permissible – Conditions
(European Parliament and Council Directive 2014/104, Arts 5 and 6)
(see paragraphs 48-61, 64-78, operative part 1)
4.        Competition – Actions for compensation for the harm caused by infringements of competition rules – Directive 2014/104 – Provisions intended to give national courts the power to order the disclosure of evidence included in the file of a competition authority – Disclosure of the evidence listed in Article 6(5) of the directive – Conditions – Closure of proceedings pending before the competition authority – Stay of proceedings by the national competition authority pending a final decision by the Commission – Act that does not amount to a closing of the proceedings
(European Parliament and Council Directive 2014/104, Art. 6(5))
(see paragraphs 82-91, operative part 2)
5.        Competition – Actions for compensation for the harm caused by infringements of competition rules – Directive 2014/104 – Provisions intended to give national courts the power to order the disclosure of evidence included in the file of a competition authority – Disclosure of the evidence listed in Article 6(5) of the directive – Extension by Member States of the list of evidence falling under that provision – Not permissible
(European Parliament and Council Directive 2014/104, Arts 5(8), 6(5) and (9))
(see paragraphs 103-109, 112, operative part 3)
6.        Competition – Actions for compensation for the harm caused by infringements of competition rules – Directive 2014/104 – Provisions intended to give national courts the power to order the disclosure of evidence included in the file of a competition authority – Mechanism allowing national courts to order the disclosure of evidence for protective purposes and to postpone the examination of the nature of the evidence – Whether permissible – Conditions
(European Parliament and Council Directive 2014/104, Arts 5(8), 6(5) and (9))
(see paragraphs 113-128, operative part 4)
Résumé
RegioJet, a rail passenger carrier on the Prague-Ostrava route, brought an action in 2015 for damages before the Městský soud v Praze (Prague City Court, Czech Republic) against České dráhy, the Czech national railway carrier, seeking compensation for damage suffered as a result of infringements of competition law allegedly committed by České dráhy.
The Czech competition authority had in 2012 already initiated administrative proceedings concerning a possible abuse of a dominant position by České dráhy, which were stayed in 2016 after the European Commission initiated proceedings concerning the same conduct.
As part of its action for damages, RegioJet submitted a request to the Prague City Court for the disclosure of several documents which it assumed to be in the possession of České dráhy. However, the Czech competition authority stated that the requested documents that were available to it in the context of the administrative proceedings, in the same way as the other documents sought, that together with the first documents constituted a comprehensive set, could not be disclosed until those proceedings had been definitively closed.
Nevertheless, after questioning the Commission on that issue, the Prague City Court granted the request for the disclosure of documents and ordered České dráhy to place in the file documents that contained information specifically prepared by České dráhy for the purpose of the proceedings before the Czech competition authority, and information kept outside the context of those proceedings. That court decided in addition to stay the substantive proceedings on the action for damages until the closure of the proceedings initiated by the Commission.
On appeal, the decision ordering the disclosure of the documents was upheld by the Vrchní soud v Praze (High Court, Prague, Czech Republic), which, in order to ensure the protection of the evidence disclosed, placed it under sequestration.
Called upon to rule, as a court seised of a point of law, on the lawfulness of the decision of the Prague High Court, the Nejvyšší soud (Supreme Court, Czech Republic) decided to refer questions to the Court of Justice on the interpretation of Directive 2014/104 on compensation for the victims of anticompetitive practices, (1) Articles 5 and 6 of which lay down rules on the disclosure of evidence requested for the purpose of an action for damages under national law for infringements of the competition law provisions of the Member States and the European Union. (2)
In interpreting Articles 5 and 6 of Directive 2014/104, the Court provides clarification as to the scope of the powers of national courts in the context of a request for the disclosure of evidence for the purpose of an action for damages for infringements of competition law and on the scope of the protection of such evidence under Directive 2014/104, where that evidence falls under administrative proceedings in the field of competition that have not yet been closed.
Findings of the Court
As a preliminary point, the Court observes that Directive 2014/104 explicitly states the conditions for the temporal application of the provisions which it lays down, depending on whether or not they are substantive provisions under EU law.
In the present case, the Court observes that the power to order the disclosure of relevant evidence held by the defendant or a third party, under the conditions laid down in Articles 5 and 6 of Directive 2014/104, relates only to the procedural measures applicable before the national courts and does not directly affect the legal situation of the parties.
In those circumstances, first, Articles 5 and 6 of Directive 2014/104 are not among the substantive provisions of that directive, within the meaning of Article 22(1) thereof, and therefore number among the other provisions covered by Article 22(2) of that directive, which makes them applicable to actions brought after 26 December 2014. Second, since the Czech legislature decided that the national provisions intended to transpose the procedural provisions of Directive 2014/104 apply, directly and unconditionally, also to actions brought before the date of its transposition into domestic law but after 26 December 2014, it follows that Articles 5 and 6 of that directive are applicable to the action being considered by the referring court since that action was brought in 2015.
As to the substance, the Court observes, as a preliminary point, that when national courts decide disputes relating to compensation to victims of anticompetitive conduct, they have a role that complements that of the competition authorities of the Member States. In adopting Directive 2014/104, the EU legislature in fact proceeded from the consideration that the enforcement of the EU competition rules by the public authorities (public enforcement) and actions for damages for infringement of those rules in the private sphere (private enforcement) are required to interact in a coherent manner, including in relation to the arrangements for access to documents held by competition authorities.
As regards actions for damages for infringement of the competition rules, the provisions applicable to the disclosure of documents set out in Articles 5 to 8 of Directive 2014/104 reflect a balance between the effectiveness of actions pursued by the competition authorities, and the effectiveness of actions for compensation brought by persons who consider that they have suffered injury as a result of anticompetitive practices. In addition, while Directive 2014/104, given the asymmetry of information which often characterises litigation on actions for damages to compensate the injury suffered as a result of infringements of competition law, seeks to improve access to evidence for the victims of anticompetitive conduct, it also clearly defines that access.
In the light of those explanations, the Court examines, in the first place, the question referred for a preliminary ruling relating to whether a national court which is deliberating on an action for damages for an infringement of competition law may order the disclosure of evidence at the same time as it stays the judicial proceedings on account of administrative proceedings conducted by the Commission which have not yet been closed.
In that regard, the Court states that it is true that Article 16(1) of Regulation No 1/2003 (3) requires national courts to refrain from giving decisions which would conflict with a decision contemplated by the Commission in proceedings it has initiated and, to that effect, to assess whether it is necessary to stay the proceedings. However, it is clear from a reading of the provisions of Directive 2014/104 as a whole that that directive does not require the national courts to stay proceedings brought before them concerning actions for damages for infringements of the competition rules owing to the fact that the Commission has initiated proceedings in respect of the same infringements.
On that point, the Court of Justice states that when a court orders the disclosure of evidence by the parties or third parties in an action for damages which has been suspended as a result of the initiation of proceedings by the Commission, that court is not in principle taking a decision which may conflict with the decision contemplated by the Commission.
Nevertheless, the national court must limit the disclosure of evidence to that which is strictly relevant, proportionate and necessary, while ensuring that such disclosure does not unduly interfere with the ongoing investigation carried out by the Commission. To that end, it must carry out a thorough examination of the relevance of the evidence requested, the link between that evidence and the claim for damages submitted, whether that evidence is sufficiently precise and as regards its proportionality. In that context, the national court must also take account of whether or not the proceedings relating to the action for damages have been stayed.
In the second place, the Court answers the question referred for a preliminary ruling that relates to whether a stay of administrative proceedings initiated by a national competition authority on account of the Commission opening proceedings in respect of the same circumstances may be equated to a means of closing the proceedings ‘otherwise’, within the meaning of Article 6(5) of Directive 2014/104, which permits the national court to order the disclosure of documents that are part of those proceedings, as referred to in that provision. (4)
In that regard, the Court observes that when Directive 2014/104 refers to the closure of proceedings by the adoption of a decision or ‘otherwise’, it means measures whereby a national competition authority decides, in the light of the information gathered in the course of the proceedings, that it is possible or even necessary to make a determination and close them. By contrast, a stay of the national administrative proceedings until the Commission has closed the investigation in the case in question constitutes merely an interim measure which cannot be equated to a closing of those proceedings.
In the third place, the Court states that national legislation that temporarily limits the disclosure of all information submitted in the course of administrative proceedings in the area of competition is not compliant with Article 6(5)(a) and (9) of Directive 2014/104.
It is unambiguously clear from the wording of Article 6(5) of Directive 2014/104, read in the light of recital 25 thereof, that the temporary protection granted under that provision does not concern all information submitted to a competition authority, but only information specifically prepared for the purpose of proceedings initiated by that authority.
That finding is confirmed by a systemic interpretation of Directive 2014/104. In that regard, the Court states in particular that allowing Member States to extend the scope of the information whose disclosure can be ordered only after the closure of the proceedings, within the meaning of Article 6(5) of that directive, would lead to a more limited disclosure of evidence, contrary to the logic of Article 5(8) of that directive, which explicitly permits Member States to adopt rules leading to wider disclosure of evidence.
In the fourth and last place, the Court finds that Directive 2014/104 does not preclude a national court, pursuant to a procedural instrument of national law, from ordering the disclosure of evidence solely in order to place it under sequestration and not disclose it until the court has ascertained whether the release of that information should await the closure of ongoing administrative proceedings. Provided that it complies with the requirements arising from the principle of proportionality, such a procedural instrument is capable of contributing to the effectiveness of claims for damages for infringement of the competition rules, while maintaining the protection to be afforded to certain kinds of evidence under Article 6(5) of Directive 2014/104.
1      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 (OJ 2014 L 349, p. 1).
2      Article 5 of that directive sets out the rules which together form a general body of rules on the disclosure of evidence requested for the purpose of an action for damages under national law for infringements of the competition law provisions of the Member States and of the European Union. In addition to that provision, Article 6 of that directive lays down specific rules on the disclosure of evidence contained in the files of the authorities responsible for implementing the competition rules.
3      Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102 TFEU] (OJ 2003 L 1, p. 1).
4      Article 6(5) of Directive 2014/104 allows national courts, after the closure of administrative proceedings initiated by a competition authority, to order the disclosure of information prepared by a natural or legal person specifically for those proceedings, information that the competition authority has drawn up and sent to the parties in the course of those proceedings and settlement submissions that have been withdrawn.