Antitrust Damages Actions: Obtaining Probative Evidence in the Hands of Another Party

Abstract

To support an antitrust damages claim a private litigant will seek to rely on documents that are not in his possession. In the absence of any specific EU rules on disclosure, however, a private litigant established in one Member State may be disfavoured as compared to a private litigant established in another. In seeking to establish a common approach to document disclosure, the EU institutions recently agreed upon the Damages Directive. At its core, the Damages Directive provides that national courts should, as a matter of principle, be able to order the disclosure of evidence, whether in the hands of the defendant or claimant, or included in the file of a competition authority. With respect to the latter, in particular, national rules implementing the Damages Directive must ensure that leniency statements and settlement submissions are never disclosed. It would seem that the Pfleiderer case law is no longer applicable to these two categories of documents, but continues to be applicable in other areas. The Damages Directive does not answer all the questions that will come before a judge faced with a request for disclosure, but marks a significant step towards facilitating the bringing of antitrust damages actions in the EU.