Case C‑163/21

AD and Others

v

PACCAR Inc
and
DAF TRUCKS NV
and
DAF Trucks Deutschland GmbH

(Request for a preliminary ruling from the Juzgado Mercantil de Barcelona (Spain))

Judgment of the Court (Second Chamber), 10 November 2022

(Reference for a preliminary ruling – Competition – Compensation for harm caused by a practice prohibited under Article 101(1) TFEU – Collusive arrangements on pricing and gross price increases for trucks in the European Economic Area (EEA) – Directive 2014/104/EU – Rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union – Article 22(2) – Applicability ratione temporis – First subparagraph of Article 5(1) – Concept of relevant evidence which lies in the control of the defendant or a third party – Article 5(2) – Disclosure of specified items of evidence or relevant categories of evidence on the basis of reasonably available facts – Article 5(3) – Review of the proportionality of the request to disclose evidence – Balancing the legitimate interests of the parties and third parties – Scope of the obligations resulting from those provisions)

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 of application of national transposing legislation to actions brought before 26 December 2014

   (European Parliament and Council Directive 2014/104, Art. 22)

   (see paragraphs 27-30)

2. Competition – Actions for compensation for the harm caused by infringements of competition rules – Directive 2014/104 – Temporal application – Provision aimed at giving national courts the possibility to order the disclosure of relevant evidence in the control of the defendant or a third party – Non-substantive provision

   (European Parliament and Council Directive 2014/104, Arts 5(1), first subparagraph, and 22(2))

   (see paragraphs 31-35)

3. Competition – Actions for compensation for the harm caused by infringements of competition rules – Directive 2014/104 – Request for disclosure of relevant evidence in the control of the defendant or a third party – Purpose – Evidence to be created ex novo by compiling or classifying information in the possession of the addressee of the request – Included

   (European Parliament and Council Directive 2014/104, Art. 5(1), first subparagraph)

   (see paragraphs 40-45, 53, 62, 69, operative part)

4. Competition – Actions for compensation for the harm caused by infringements of competition rules – Directive 2014/104 – Request for disclosure of relevant evidence in the control of the defendant or a third party – Obligations of the national court seised – Assessment of the relevance, proportionality and necessity of the evidence sought

   (European Parliament and Council Directive 2014/104, Art. 5(2) and (3))

   (see paragraphs 50-52, 64, 67, 68, operative part)

5. Competition – Actions for compensation for the harm caused by infringements of competition rules – Directive 2014/104 – Aim

   (Arts 101 and 102 TFEU; European Parliament and Council Directive 2014/104)

   (see paragraphs 55-59)

Résumé

By decision of 19 July 2016, ( 1 ) the European Commission found that, by agreeing, first, on the prices of trucks in the European Economic Area (EEA) from 1997 to 2011 and, second, on the timing and the passing on of costs for the introduction of emission technologies required by EURO 3 to EURO 6 standards, PACCAR, DAF Trucks and DAF Trucks Deutschland (‘the manufacturers in question’) participated, with a number of other truck manufacturers, in a cartel contrary to the EU law rules prohibiting cartels. ( 2 )

On 25 March 2019, 45 parties claiming to have acquired trucks capable of falling within the scope of the infringement established by the decision of 19 July 2016 brought an action before the Juzgado de lo Mercantil no 7 de Barcelona (Commercial Court No 7, Barcelona, Spain) seeking access to various items of evidence held by the manufacturers in question in order to seek compensation for the damage resulting from the infringement established by the decision of 19 July 2016. In that regard, those parties 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. The manufacturers in question challenged that request, arguing, inter alia, that some of the documents requested had to be drawn up on an ad hoc basis.

Given that access to the evidence referred to in the contested request was based on a provision of Spanish law ( 3 ) transposing Article 5(1) of Directive 2014/104, ( 4 ) the Commercial Court No 7, Barcelona referred a question to the Court of Justice for a preliminary ruling seeking, in essence, to ascertain whether the disclosure of relevant evidence, referred to in that article, in the control of the defendant or a third party relates only to documents in their control which already exist or, in contrast, also relates to new documents that they must create by compiling or classifying data in their possession.

In its judgment, the Court held that the first subparagraph of Article 5(1) of Directive 2014/104 must be interpreted as meaning that the relevant evidence in the control of the defendant or a third party, the disclosure of which may be ordered by the national courts, is not limited to documents in their possession which already exist, but 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 by those courts with their obligation under paragraphs 2 and 3 of that article to restrict the disclosure of evidence to that which is relevant, proportionate and necessary, taking into account the legitimate interests and fundamental rights of the party to whom the request is addressed.

Findings of the Court

As a preliminary point, the Court sets out the conditions for the temporal application of Article 5(1) of Directive 2014/104, noting at the outset that Article 22 of that directive expressly lays down the conditions for the temporal application of its provisions, depending on whether or not they are substantive provisions in the light of EU law.

In the present case, the Court observes that the possibility of ordering the disclosure of relevant evidence held by the defendant or a third party, under the conditions laid down in the first subparagraph of Article 5(1) of Directive 2014/104, is one of the particular powers which the national courts must have when examining disputes relating to actions for damages seeking compensation for harm suffered as a result of infringements of competition law. By that requirement, that provision seeks to remedy the information asymmetry which characterises, in principle, those disputes to the detriment of the injured party. However, its subject matter relates only to the procedural measures applicable before national courts and does not directly affect the legal situation of the parties.

In those circumstances, 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, rather it numbers amongst the ‘other’ provisions covered by Article 22(2) of that directive, which that provision declares applicable to actions brought after 26 December 2014. It follows that the first subparagraph of Article 5(1) of Directive 2014/104 is applicable to the action brought before the referring court, since it was brought on 25 March 2019.

Taking the view, therefore, that it is necessary to provide an answer on the substance to the referring court, the Court observes, first of all, that, in so far as the wording of the first subparagraph of Article 5(1) of Directive 2014/104 leads to it being considered that a request to disclose evidence concerns only pre-existing evidence, the interpretation of that provision must also take account of its context and the objectives of the legislation of which it forms part.

As regards, first, the context of the first subparagraph of Article 5(1) of Directive 2014/104, the Court observes that the definition of the term ‘evidence’ in Article 2(13) of that directive, which refers to ‘all types of means of proof admissible before the national court seised, in particular documents and all other objects containing information, irrespective of the medium on which the information is stored’, does not permit the inference that the evidence whose disclosure is sought necessarily corresponds to pre-existing ‘documents’. In that regard, the Court considers that the reference to evidence ‘in [the] control’ of the defendant or a third party merely reflects a factual situation, relating to the information asymmetry referred to above, which the EU legislature intends to remedy.

According to the Court, 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, which require the national courts, respectively, to ensure compliance with the requirement that the request to disclose evidence must be specific and that the principle of proportionality is observed.

As regards, second, the purpose of the first subparagraph of Article 5(1) of Directive 2014/104, the Court recalls that the adoption of Directive 2014/104 started from the finding, by the EU legislature, that combating anticompetitive conduct on an initiative taken by the Commission and the national competition authorities was not sufficient to ensure full compliance with EU competition rules and, therefore, that it was important to facilitate the possibility for the private sphere of participating in the financial penalisation and thus in the prevention of such conduct. The particular powers which the national courts must have in order to remedy the information asymmetry between the parties concerned help to achieve that objective.

From that point of view, the Court considers that to restrict at the outset evidence, the disclosure of which may be sought, only to pre-existing documents in the control of the defendant or a third party could, in certain cases, run counter to the primary objective pursued by Directive 2014/104.

Nonetheless, the Court points out, finally, that such an interpretation of the first subparagraph of Article 5(1) of Directive 2014/104 does not in any way affect the application of the balancing mechanism for the interests involved, as follows from paragraphs 2 and 3 of that article. Given that the provisions of that directive must be implemented in compliance with the fundamental rights and principles recognised by the Charter of Fundamental Rights of the European Union, it is for the national courts, when they receive a request to disclose evidence, to restrict the disclosure of evidence to that which is relevant, proportionate and necessary, taking into account the legitimate interests and fundamental rights of the party to whom that request is addressed, in accordance with Article 5(2) and (3) of that directive.

( 1 ) Commission Decision C(2016) 4673 final relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (AT.39824 – Trucks).

( 2 ) Article 101 TFEU and Article 53 of the EEA Agreement.

( 3 ) In the present case, Article 283a(a) of the Ley de Enjuiciamiento Civil (Law No 1/2000 establishing the Code of Civil Procedure) of 7 January 2000 (BOE No 7 of 8 January 2000, p. 575).

( 4 ) 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).