Provisional text
JUDGMENT OF THE COURT (Second Chamber)
29 January 2026 (*)
( Reference for a preliminary ruling – 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 – Article 5(1) – Scope – Special declaratory action for the disclosure of documents preceding a potential action for damages – Assessment of the plausibility of the claim for damages )
In Case C‑286/24,
REQUEST for a preliminary ruling under Article 267 TFEU from the Supremo Tribunal de Justiça (Supreme Court, Portugal), made by decision of 4 March 2024, received at the Court on 23 April 2024, in the proceedings
Meliá Hotels International, S.A.
v
Associação Ius Omnibus,
THE COURT (Second Chamber),
composed of K. Jürimäe (Rapporteur), President of the Chamber, K. Lenaerts, President of the Court, acting as Judge of the Second Chamber, F. Schalin, M. Gavalec and Z. Csehi, Judges,
Advocate General: M. Szpunar,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
– Meliá Hotels International, S.A., by F. Aguilar de Carvalho, T.L. Faria and G. Neves Lima, advogados,
– Associação Ius Omnibus, by M. Sousa Ferro, advogado,
– the Portuguese Government, by C. Alves and P. Barros da Costa, acting as Agents,
– the European Commission, by S. Baches Opi and P. Caro de Sousa, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 12 June 2025,
gives the following
Judgment
1 This request for a preliminary ruling concerns the interpretation 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 (OJ 2014 L 349, p. 1).
2 The request has been made in proceedings between Meliá Hotels International, S.A. (‘Meliá’) and Associação Ius Omnibus (‘Ius Omnibus’) in the context of a special declaratory action brought by Ius Omnibus for the disclosure of documents relating to an infringement of competition law committed by Meliá.
Legal context
European Union law
Regulation (EC) No 1/2003
3 Article 7 of 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), entitled ‘Finding and termination of infringement’, states, in the first sentence of paragraph 1:
‘Where the Commission, acting on a complaint or on its own initiative, finds that there is an infringement of Article [101 TFEU] or of Article [102 TFEU], it may by decision require the undertakings and associations of undertakings concerned to bring such infringement to an end.’
4 Article 16 of Regulation No 1/2003, entitled ‘Uniform application of Community competition law’ provides, in paragraph 1:
‘When national courts rule on agreements, decisions or practices under Article [101 TFEU] or Article [102 TFEU] which are already the subject of a [European] Commission decision, they cannot take decisions running counter to the decision adopted by the Commission. They must also avoid giving decisions which would conflict with a decision contemplated by the Commission in proceedings it has initiated. To that effect, the national court may assess whether it is necessary to stay its proceedings. This obligation is without prejudice to the rights and obligations under Article [267 TFEU].’
Directive 2014/104
5 Recitals 6, 14 to 16, 22, 27 and 47 of Directive 2014/104 are worded as follows:
‘(6) To ensure effective private enforcement actions under civil law and effective public enforcement by competition authorities, both tools are required to interact to ensure maximum effectiveness of the competition rules. …
…
(14) Actions for damages for infringements of Union or national competition law typically require a complex factual and economic analysis. 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. In such circumstances, 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 can unduly impede the effective exercise of the right to compensation guaranteed by the TFEU.
(15) Evidence is an important element for bringing actions for damages for infringement of Union or national competition law. However, as competition law litigation is characterised by an information asymmetry, 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. In order to ensure equality of arms, those means should also be available to defendants in actions for damages, so that they can request the disclosure of evidence by those claimants. National courts should also be able to order that evidence be disclosed by third parties, including public authorities. …
(16) National courts should be able, under their strict control, especially as regards the necessity and proportionality of disclosure measures, to order the disclosure of specified items of evidence or categories of evidence upon request of a party. It follows from the requirement of proportionality that disclosure can be ordered only where a claimant has made a plausible assertion, on the basis of facts which are reasonably available to that claimant, that the claimant has suffered harm that was caused by the defendant. …
…
(22) In order to ensure the effective protection of the right to compensation, it is not necessary that every document relating to proceedings under Article 101 or 102 TFEU be disclosed to a claimant merely on the grounds of the claimant’s intended action for damages since it is highly unlikely that the action for damages will need to be based on all the evidence in the file relating to those proceedings.
…
(27) The rules in this Directive on the disclosure of documents other than leniency statements and settlement submissions ensure that injured parties retain sufficient alternative means by which to obtain access to the relevant evidence that they need in order to prepare their actions for damages. …
…
(47) To remedy the information asymmetry and some of the difficulties associated with quantifying harm in competition law cases, and to ensure the effectiveness of claims for damages, it is appropriate to presume that cartel infringements result in harm, in particular via an effect on prices. Depending on the facts of the case, cartels result in a rise in prices, or prevent a lowering of prices which would otherwise have occurred but for the cartel. This presumption should not cover the concrete amount of harm. Infringers should be allowed to rebut the presumption. It is appropriate to limit this rebuttable presumption to cartels, given their secret nature, which increases the information asymmetry and makes it more difficult for claimants to obtain the evidence necessary to prove the harm.’
6 Article 1 of that directive, entitled ‘Subject matter and scope’, provides:
‘1. This Directive sets out certain rules necessary to ensure that anyone who has suffered harm caused by an infringement of competition law by an undertaking or by an association of undertakings can effectively exercise the right to claim full compensation for that harm from that undertaking or association. It sets out rules fostering undistorted competition in the internal market and removing obstacles to its proper functioning, by ensuring equivalent protection throughout the Union for anyone who has suffered such harm.
2. This Directive sets out rules coordinating the enforcement of the competition rules by competition authorities and the enforcement of those rules in damages actions before national courts.’
7 Points 4 and 14 of Article 2 are worded as follows:
‘For the purposes of this Directive, the following definitions apply:
…
(4) “action for damages” means an action under national law by which a claim for damages is brought before a national court by an alleged injured party, or by someone acting on behalf of one or more alleged injured parties where Union or national law provides for that possibility, or by a natural or legal person that succeeded in the right of the alleged injured party, including the person that acquired the claim;
…
(14) “cartel” means an agreement or concerted practice between two or more competitors aimed at coordinating their competitive behaviour on the market or influencing the relevant parameters of competition through practices such as, but not limited to, the fixing or coordination of purchase or selling prices or other trading conditions …’
8 Article 5 of that directive, which is entitled ‘Disclosure of evidence’, provides, in paragraphs 1 to 3 and 8:
‘1. Member States shall ensure that in proceedings relating to an action for damages in the Union, upon request of a claimant who has presented a reasoned justification containing reasonably available facts and evidence sufficient to support the plausibility of its claim for damages, national courts are able to order the defendant or a third party to disclose relevant evidence which lies in their control, subject to the conditions set out in this Chapter. Member States shall ensure that national courts are able, upon request of the defendant, to order the claimant or a third party to disclose relevant evidence.
…
2. Member States shall ensure that national courts are able to order the disclosure of 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.
3. Member States shall ensure that national courts limit the disclosure of evidence to that which is proportionate. In determining whether any disclosure requested by a party is proportionate, national courts shall consider the legitimate interests of all parties and third parties concerned. They shall, in particular, consider:
(a) the extent to which the claim or defence is supported by available facts and evidence justifying the request to disclose evidence;
(b) 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;
(c) whether the evidence the disclosure of which is sought contains confidential information, especially concerning any third parties, and what arrangements are in place for protecting such confidential information.
…
8. Without prejudice to paragraphs 4 and 7 and to Article 6, this Article shall not prevent Member States from maintaining or introducing rules which would lead to wider disclosure of evidence.’
9 Article 6 of Directive 2014/104, entitled ‘Disclosure of evidence included in the file of a competition authority’, states, in paragraph 4(b) thereof:
‘When assessing, in accordance with Article 5(3), the proportionality of an order to disclose information, national courts shall, in addition, consider the following:
…
(b) whether the party requesting disclosure is doing so in relation to an action for damages before a national court; …’
10 Article 17 of that directive, entitled ‘Quantification of harm’, provides, in paragraph 2 thereof:
‘It shall be presumed that cartel infringements cause harm. The infringer shall have the right to rebut that presumption.’
Portuguese law
11 Directive 2014/104 was transposed into Portuguese law by Lei No 23/2018 (Law No 23/2018) of 5 June 2018 (Diário da República, Series 1, No 290, of 5 June 2018).
12 Article 12 of Law No 23/2018, entitled ‘Disclosure of evidence in relation to an action for damages’, provides, in paragraphs 1 to 4:
‘1 – The court may, at the request of any party to the action for damages, order the other party or a third party, including public entities, to disclose evidence which lies in its control, subject to the limitations set out in this Chapter.
2 – The request referred to in the previous paragraph shall be based on reasonably available facts and evidence sufficient to support the plausibility of the claim for damages or of the defence, and shall state the facts to be proved.
3 – The request shall identify as precisely and narrowly as possible the items of evidence or categories of evidence the disclosure of which is sought, on the basis of the facts on which that request is based.
4 – The court shall order the disclosure of evidence if it considers that disclosure to be proportionate and relevant for the purposes of judgment, and requests involving indiscriminate searches for information shall be refused.’
13 Article 13 of that law, entitled ‘Access to evidence before an action for damages is brought’, states:
‘1 – Any person who, pursuant to and for the purposes of Articles 573 to 576 of the Civil Code, wishes to obtain information or the disclosure of evidence, including information or evidence which the person in possession thereof does not wish to provide, may, justifying the need for the measure and subject to the other limitations set out in this chapter, request the competent court to summon the person that issued the refusal to disclose such information or evidence at a date, time and place designated by the court, under the conditions laid down in Articles 1045 to 1047 of the Code of Civil Procedure.
2 – The provisions of Article 12(2) to (9) shall be applicable mutatis mutandis to the requests for access referred to in the preceding paragraph.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
14 On 21 February 2020, the Commission adopted Decision C(2020) 893 final relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case AT.40528 – Meliá (Holiday Pricing)), a summary of which was published in the Official Journal of the European Union of 2 June 2020 (OJ 2020 C 182, p. 9).
15 In that decision, addressed to Meliá, the Commission found that, during the period from 1 January 2014 to 31 December 2015, Meliá had infringed Article 101 TFEU and Article 53 of the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3) by implementing, by means of contracts, vertical practices that differentiated between consumers on the basis of their nationality or country of residence, thereby restricting active and passive sales of accommodation in hotels which it manages or owns to consumers who were nationals or residents of the Member States that it determined itself.
16 Ius Omnibus brought a special action, before the court of first instance with jurisdiction, on the basis of Article 13 of Law No 23/2018. That action sought the disclosure of documents held by Meliá which Ius Omnibus believes are necessary in order, first, to determine and prove the scope and effects of the anti-competitive practice identified by the Commission and, second, to determine, prove and quantify the harm caused to consumers by that practice. Ius Omnibus emphasised that that action preceded a potential collective action for damages, which it intended to bring by exercising its right to bring an actio popularis on behalf of injured consumers residing in Portugal, in the event that, on the basis of the documents, it could establish that Meliá’s anti-competitive practice, as identified by the Commission, had harmed the interests of those consumers.
17 That court upheld the special declaratory action brought by Ius Omnibus. On appeal by Meliá, the Tribunal da Relação (Court of Appeal, Portugal) upheld the judgment at first instance in its entirety.
18 Meliá then brought an exceptional appeal on a point of law before the Supremo Tribunal de Justiça (Supreme Court, Portugal), the referring court.
19 That court emphasises that this is the first time it has been tasked with interpreting Article 5(1) to (3) of Directive 2014/104 and Articles 12 and 13 of Law No 23/2018, which transposed that directive into Portuguese law. It is necessary, in that regard, to determine how the criteria of plausibility, necessity and proportionality should be assessed in the context of a special declaratory action for the disclosure of documents, such as that brought by Ius Omnibus. The referring court asks, in particular, whether mere reliance on a Commission decision is sufficient to justify the disclosure of the documents requested.
20 In those circumstances, the Supremo Tribunal de Justiça (Supreme Court) decided to stay the proceedings and refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Is Article 5(1) of Directive [2014/104] applicable to an action for access to evidence prior to the bringing of an action for damages within the meaning of [point 4 of Article 2] of that directive?
If the foregoing question is answered in the affirmative:
(2) Does the requirement as to the plausibility of [harm] laid down in Article 5(1) of Directive [2014/104] always compel the applicant to demonstrate that, in the case at issue, harm is more likely to have been caused to the consumers represented, in this instance those resident in Portugal, than not?
(3) May national courts base the criterion as to the plausibility of [harm] laid down in Article 5(1) of Directive [2014/104] exclusively on the existence of a decision adopted by the competent competition authorities[?] In particular, what bearing would it have on this analysis if the decision in question were one adopted as part of a settlement procedure relating to a vertical infringement by object of EU competition law?’
Consideration of the questions referred
The first question
21 As a preliminary point, it must be noted that, in the procedure laid down in Article 267 TFEU, which provides for cooperation between national courts and the Court of Justice, it is for the latter to provide the referring court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court should, where necessary, reformulate the question referred to it (see judgments of 17 July 1997, Krüger, C‑334/95, EU:C:1997:378, paragraphs 22 and 23; of 28 November 2000, Roquette Frères, C‑88/99, EU:C:2000:652, paragraph 18; and of 16 February 2023, Tráficos Manuel Ferrer, C‑312/21, EU:C:2023:99, paragraph 31).
22 In the present case, it should be observed that, as the Advocate General observed in point 23 of his Opinion, the first question falls within the context of Portuguese law, which expressly provides for the possibility of requesting the disclosure of evidence before an action for damages seeking compensation for harm suffered as a result of infringements of competition law. There is therefore no need, in the present case, to determine whether Directive 2014/104 requires the Member States to provide for such a possibility.
23 By contrast, it is necessary to determine whether, where it is provided for by national law, a prior action seeking access to evidence brought before a potential action for damages falls within the scope of Article 5(1) of that directive.
24 In those circumstances, it must be held that, by its first question, the referring court seeks, in essence, to ascertain whether Article 5(1) of Directive 2014/104 must be interpreted as applying to a prior action for access to evidence brought before an action for damages, within the meaning of point 4 of Article 2 of that directive, where national law provides for such a prior action.
25 In that regard, it should be borne in mind that Article 5 of Directive 2014/104 sets out a number of general rules on the disclosure of evidence in proceedings relating to actions for damages for infringements of competition law (judgment of 12 January 2023, RegioJet, C‑57/21, EU:C:2023:6, paragraph 55).
26 Under the first sentence of the first subparagraph of Article 5(1) of Directive 2014/104, Member States are to ensure that in proceedings relating to an action for damages in the European Union, upon request of a claimant who has presented a reasoned justification containing reasonably available facts and evidence sufficient to support the plausibility of its claim for damages, national courts are able to order 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, which relates to the disclosure of evidence.
27 In interpreting that provision, 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 (see judgments of 17 November 1983, Merck, 292/82, EU:C:1983:335, paragraph 12, and of 10 November 2022, PACCAR and Others, C‑163/21, EU:C:2022:863, paragraph 38 and the case-law cited).
28 In the first place, as regards the literal interpretation of Article 5(1) of Directive 2014/104, it must be observed that the wording of that provision varies between language versions.
29 Accordingly, the term ‘proceedings relating to actions for damages’ is used, inter alia, in the French- (‘procédures relatives aux actions en dommages et intérêts’), Spanish- (‘procedimientos relativos a acciones por daños’), Czech- (‘řízeních týkajících se žaloby o náhradu škody’), Estonian- (‘kahju hüvitamise hagiga seotud menetluses’), English- and Italian- (‘procedimenti relativi a un’azione per il risarcimento del danno’) language versions of that provision. In those versions, Article 5(1) of Directive 2014/104 is therefore formulated in broad terms as a result of the use of the indeterminate expression ‘proceedings relating to’. That provision may thus cover, in addition to an action for damages within the strict meaning of point 4 of Article 2 of Directive 2014/104, a prior action, such as an action under national law seeking evidence in connection with a future action for damages.
30 That being said, other language versions of Article 5(1) of that directive, such as those in Greek (‘διαδικασίες αγωγής αποζημίωσης’) and Polish (‘w postępowaniu o odszkodowanie’), are worded in a more restrictive manner, in that they only refer, respectively, to ‘proceedings in an action for damages’ and ‘proceedings for compensation’. Those terms could be understood as meaning that that provision is not intended to apply to an action seeking to obtain documentary evidence which has been brought before an action for damages.
31 In that regard, it should be noted that according to the Court’s settled case-law, the wording used in one language version of a provision of EU law cannot serve as the sole basis for the interpretation of that provision or be made to override the other language versions in that regard. The need for uniform interpretation and application of each provision of EU law precludes one linguistic version of the text being considered in isolation, and requires that the measure be interpreted by reference to the general scheme and purpose of the rules of which it forms part (see, to that effect, judgments of 12 November 1969, Stauder, 29/69, EU:C:1969:57, paragraphs 2 and 3, and of 29 February 2024, Bundesamt für Fremdenwesen und Asyl (Subsequent religious conversion), C‑222/22, EU:C:2024:192, paragraph 42).
32 In the second place, as regards the context of Article 5(1) of Directive 2014/104, it should be observed, first, that, as is apparent from the title of that directive and from Article 1 thereof, that directive sets out certain rules necessary to ensure that anyone who has suffered harm caused by an infringement of competition law can effectively exercise the right to claim full compensation for that harm and sets out rules coordinating the enforcement of the competition rules by competition authorities and the enforcement of those rules in actions for damages before national courts.
33 In the light of Article 1 of Directive 2014/104, the Court has already held that the material scope of that directive is limited solely to actions for damages brought for infringements of the competition rules and does not extend to other types of action concerning infringements of the competition law provisions (see, to that effect, judgment of 20 April 2023, Repsol Comercial de Productos Petrolíferos, C‑25/21, EU:C:2023:298, paragraphs 30 and 31). Although the Court thus intended to exclude from the scope of that directive, inter alia, actions for a declaration of nullity brought under Article 101(2) TFEU, it did not, however, rule on the applicability of that directive, and in particular of Article 5(1) thereof, to an action seeking to obtain documentary evidence and which has been brought before an action for damages.
34 Second, it should be noted that certain provisions of Directive 2014/104 express the intention of the EU legislature not to exclude those prior actions from the scope of that directive.
35 Article 6(4)(b) of Directive 2014/104 states, with regard to evidence included in the file of a competition authority, that when national courts assess the proportionality of an order to disclose information in accordance with Article 5(3) of that directive, they must, in addition, consider whether ‘the party requesting disclosure is doing so in relation to an action for damages before a national court’.
36 In that context, recital 22 of Directive 2014/104 explicitly refers, for the purposes of ensuring the effective protection of the right to compensation, to the disclosure of documents for the claimant’s ‘intended action for damages’ Similarly, recital 27 of that directive emphasises even more clearly that the rules in that directive relating to the disclosure of documents ensure that injured parties have access to the relevant evidence that they need ‘in order to prepare their actions for damages’.
37 Accordingly, the EU legislature did not, as a matter of principle, intend to exclude from the scope of Directive 2014/104 any prior action for access to evidence brought before an action for damages seeking compensation for harm caused by an infringement of competition law. On the contrary, it appears that, at least in certain circumstances, that directive expressly covers the situation in which a request for the disclosure of evidence is made before an action for damages, with the aim of preparing that action.
38 Those factors therefore support a broad interpretation of Article 5(1) of Directive 2014/104 according to which it applies to a prior action for access to evidence brought before an action for damages, where national law provides for such an action.
39 In the third place, the objectives pursued by Directive 2014/104 are also capable of supporting such an interpretation.
40 In that regard, it should 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 (judgment of 10 November 2022, PACCAR and Others, C‑163/21, EU:C:2022:863, paragraph 55).
41 In order to achieve those objectives, it is necessary to implement tools to remedy the information asymmetry between parties involved in disputes relating to compensation for harm caused by infringements of competition law, which characterises, in principle, those disputes to the detriment of the injured party, as stated in recital 15 of Directive 2014/104, and which makes it more difficult for that person to obtain the information necessary to bring an action for damages (see, to that effect, judgment of 10 November 2022, PACCAR and Others, C‑163/21, EU:C:2022:863, paragraphs 32 and 59).
42 The first subparagraph of Article 5(1) of Directive 2014/104 is intended precisely to remedy that information asymmetry, in that it obliges the Member States to confer particular powers on national courts when examining disputes relating to actions for damages which seek compensation for damage suffered as a result of infringements of competition law (see, to that effect, judgments of 10 November 2022, PACCAR and Others, C‑163/21, EU:C:2022:863, paragraph 32, and of 12 January 2023, RegioJet, C‑57/21, EU:C:2023:6, paragraph 41).
43 An interpretation of Article 5(1) of Directive 2014/104 as applying only to actions for damages stricto sensu, to the exclusion of prior actions for access to evidence provided for by national law, would be contrary to the objectives of that directive, which are to facilitate the exercise of the right to damages, given the need to remedy the information asymmetry characterising those disputes, and thus to ensure the effectiveness of the private enforcement of competition law.
44 A prior action for access to evidence brought before an action for damages contributes to the effectiveness of the latter and remedies that information asymmetry.
45 Such an interpretation also makes it possible to protect the legitimate interests of all the parties and third parties concerned.
46 Accordingly, since it falls within the scope of Article 5(1) of Directive 2014/104, such a prior action is subject to the general rules on the disclosure of evidence in proceedings relating to actions for damages for infringements of competition law laid down in Article 5 of that directive. In the interests of both ensuring the effective exercise of the right to damages and preventing the abusive use of such actions, Article 5(2) and (3) establishes a mechanism for balancing the legitimate interests of all parties and third parties concerned, subject to strict review by the national courts before which proceedings have been brought (see, to that effect, judgment of 10 November 2022, PACCAR and Others, C‑163/21, EU:C:2022:863, paragraphs 57 and 64).
47 The imposition of those general rules on prior actions, as provided for by national law, which are intended to obtain access to evidence brought before an action for damages, can thus prevent ‘fishing expeditions’, that is to say, in accordance with Article 5(3)(b) of that directive, any non-specific search for information which is unlikely to be of relevance for the parties in the procedure.
48 In the light of the foregoing reasons, the answer to the first question is that Article 5(1) of Directive 2014/104 must be interpreted as applying to a prior action for access to evidence brought before an action for damages, within the meaning of point 4 of Article 2 of that directive, where national law provides for such a prior action.
The third question
49 As a preliminary point, it should be observed, as the Commission noted, that the third question, which it is appropriate to examine before the second question, concerns the interpretation of Article 5(1) of Directive 2014/104 and, more specifically, of the criterion based on the ‘plausibility of [harm]’.
50 In that regard, Article 5(1) of Directive 2014/104 makes the gathering of requested evidence dependent on the claimant submitting a reasoned justification containing reasonably available facts and evidence sufficient to support the ‘plausibility of its claim for damages’.
51 Furthermore, it is clear from the settled case-law of the Court that any person can seek payment of compensation for harm suffered where there is a causal relationship between that harm and an infringement of EU competition law. Accordingly, harm is only one of the essential elements for the purposes of an action for damages, the other two being the existence of an infringement of competition law and the existence of a causal link between that infringement and the harm (see, to that effect, judgments of 13 July 2006, Manfredi and Others, C‑295/04 to C‑298/04, EU:C:2006:461, paragraph 61, and of 22 June 2022, Volvo and DAF Trucks, C‑267/20, EU:C:2022:494, paragraphs 58 and 60).
52 In those circumstances, it is necessary, in accordance with the case-law cited in paragraph 21 above and in order to provide the referring court with a useful answer, to reformulate the third question.
53 Accordingly, it must be held that, by that question, the referring court asks, in essence, whether Article 5(1) of Directive 2014/104 must be interpreted as meaning that a Commission decision finding an infringement of EU competition law in the form of a vertical restriction by object is sufficient to establish the plausibility of a claim for damages and whether the answer to that question is affected by the fact that that decision was adopted at the end of a settlement procedure.
54 As is apparent from paragraphs 50 and 51 above, Article 5(1) of Directive 2014/104 requires, in essence, that the person injured by an infringement of competition law must put forward, in support of his or her request for the disclosure of evidence, a reasoned justification containing reasonably available facts and evidence sufficient to establish the plausibility of his or her claim for damages, that is to say, the plausibility of the existence of an infringement, of harm and of a causal link between that infringement and that harm.
55 In the first place, it should be recalled that, in accordance with Article 16 of Regulation No 1/2003, when national courts rule on agreements, decisions or practices under, inter alia, Article 101 TFEU which are already the subject of a Commission decision, they cannot take decisions running counter to the decision adopted by the Commission.
56 In accordance with the case-law of the Court, that obligation on the national court not to take decisions running counter to a Commission decision finding an infringement of Article 101 TFEU is binding on the national court even where that decision is not yet final. First, Article 16(1) of Regulation No 1/2003 does not require the Commission’s decision to have become final in order for the national court to be obliged to comply with it. Second, a Commission decision that is not yet final, in which the Commission finds an infringement of competition law, has binding effect for as long as it has not been annulled, and it is for the national court to draw the appropriate conclusions from that in the proceedings before it (see, to that effect, judgment of 18 April 2024, Heureka Group (Online price comparison services), C‑605/21, EU:C:2024:324, paragraphs 74 and 77).
57 It also follows from the Court’s case-law that that obligation on the national court not to take decisions running counter to a Commission decision finding an infringement of Article 101 TFEU requires the national court to accept that a prohibited agreement or practice exists. By contrast, the existence of harm and of a direct causal link between the harm and the agreement or practice in question remains a matter to be assessed by the national court (see, to that effect, judgment of 6 November 2012, Otis and Others, C‑199/11, EU:C:2012:684, paragraph 65).
58 It follows that, as the Advocate General observed in points 43 and 45 of his Opinion, a Commission decision finding an infringement of Article 101 TFEU enables the national court to find that the existence and, a fortiori, the plausibility of the infringement have been established. However, the effect of such a finding, based on that decision, concerns only the nature of the infringement and its material, personal, temporal and territorial scope as determined by the Commission. By contrast, that decision is not sufficient, as such, to support the plausibility of a claim for damages in all circumstances. To that end, it is still necessary to demonstrate the plausibility of harm and of the causal link.
59 In that regard, it should, in the second place, be recalled that, in accordance with Article 17(2) of Directive 2014/104, it is presumed that cartel infringements cause harm. The infringer has the right, however, to rebut that presumption.
60 It is apparent from the wording of that provision that it establishes a rebuttable presumption as to the existence of harm resulting from a cartel. As is apparent from recital 47 of Directive 2014/104, the EU legislature limited that presumption to cartel cases, given their secret nature, which increases the information asymmetry and makes it more difficult for injured parties to obtain the evidence necessary to prove the harm (see, to that effect, judgment of 22 June 2022, Volvo and DAF Trucks, C‑267/20, EU:C:2022:494, paragraph 91).
61 It follows from point 14 of Article 2 of that directive that, for the purposes of that directive, a cartel is understood as a horizontal restriction of competition between two or more competitors.
62 Consequently, the rebuttable presumption of the existence of harm provided for in Article 17(2) of Directive 2014/104 is not applicable in the case of a vertical restriction of competition involving non-competing undertakings which operate at different levels of the production or distribution chain.
63 It follows that, in the case of a Commission decision finding a cartel prohibited by Article 101 TFEU, the plausibility of the harm caused by the infringement must be deemed to have been demonstrated, unless the defendant rebuts the presumption.
64 By contrast, a Commission decision finding an infringement of Article 101 TFEU in the form of a vertical restriction of competition does not, as such, allow a finding that the plausibility of the harm caused by the infringement has been established.
65 That finding also applies where the vertical restriction found in the Commission’s decision is a restriction of competition ‘by object’.
66 In that regard, it should be recalled that Article 101(1) TFEU makes a clear distinction between the concept of restriction by object and the concept of restriction by effect, evidence with regard to each of those concepts being subject to different rules (judgment of 30 January 2020, Generics (UK) and Others, C‑307/18, EU:C:2020:52, paragraph 63). Accordingly, where the anticompetitive object of an agreement is established, it is not necessary to examine its effects on competition (judgment of 20 January 2016, Toshiba Corporation v Commission, C‑373/14 P, EU:C:2016:26, paragraph 25 and the case-law cited, and of 29 June 2023, Super Bock Bebidas, C‑211/22, EU:C:2023:529, paragraph 31).
67 However, as the Advocate General observed in point 53 of his Opinion, a finding of a vertical restriction of competition by object does not imply that harm has been caused to a particular person or that there is a causal link between that restriction and that possible harm. Therefore, as the Advocate General also stated in point 54 of his Opinion, the degree of plausibility required for the purposes of a request for the disclosure of evidence under Article 5(1) of Directive 2014/104 must still be substantiated by the claimant as regards the harm and the causal link.
68 That said, a decision finding that there is a vertical restriction by object may include elements relevant to the assessment of the plausibility of harm and of the causal link, in conjunction with the other facts and evidence reasonably available to and put forward by the applicant.
69 In the present case, it is apparent from paragraphs 46 and 49 of the Commission’s decision of 21 February 2020 that the agreements at issue limited the ability of tour operators to sell accommodation freely in all States of the European Economic Area (EEA). That finding by the Commission is an indication that the infringement in question was likely to have affected Portuguese consumers. That indication may, in combination with the other reasonably available facts and evidence put forward by Ius Omnibus, be taken into account for the purposes of assessing the plausibility of the harm and of the causal link between that harm and that infringement.
70 In the third place, in view of the referring court’s questions, it should be added that the fact that the Commission’s decision finding an infringement of Article 101 TFEU was adopted in the context of a settlement procedure is irrelevant for the purposes of answering the third question.
71 A decision adopted at the end of a settlement procedure constitutes a decision under Articles 7 and 23 of Regulation No 1/2003, by which the Commission finds that the addressees of the decision participated in an infringement of competition law.
72 In the light of the foregoing, the answer to the third question is that Article 5(1) of Directive 2014/104 must be interpreted as meaning that a Commission decision finding an infringement of EU competition law in the form of a vertical restriction by object is not sufficient to establish the plausibility of a claim for damages, since that claim requires proof not only of the plausibility of such an infringement, as established by such a decision, but also of damage and of a causal link between that damage and that infringement. The fact that that decision was made at the end of a settlement procedure makes no difference to the answer to that question.
The second question
73 By its second question, which should be reformulated in accordance with the considerations set out in paragraphs 21 and 50 to 52 of this judgment, the referring court seeks, in essence, to ascertain whether Article 5(1) of Directive 2014/104 must be interpreted as meaning that, in order to demonstrate the plausibility of a claim for damages within the meaning of that provision, it is necessary to prove that it is more likely than not that the conditions for liability for an infringement of competition law are met.
74 As stated in paragraph 54 above, Article 5(1) of Directive 2014/104 requires, in essence, that the person injured by an infringement of competition law must put forward, in support of his or her request for the disclosure of evidence, a reasoned justification containing reasonably available facts and evidence sufficient to establish the plausibility of his or her claim for damages.
75 In that regard, it should be noted that Directive 2014/104 does not define what is meant by the ‘plausibility’ of a claim for damages, nor does it refer to the law of the Member States to define such a concept. That concept must therefore be given an autonomous interpretation in EU law, having regard not only to the wording of that provision but also to the context in which it occurs and the objectives pursued by the rules of which it is a part (see, to that effect, judgments of 18 January 1984, Ekro, 327/82, EU:C:1984:11, paragraph 11; of 30 April 2024, M.N. (EncroChat), C‑670/22, EU:C:2024:372, paragraph 109; and of 9 January 2025, Delda, C‑583/23, EU:C:2025:6, paragraph 27).
76 In the first place, according to its usual meaning, the concept of ‘plausibility’ refers to cogency, credibility or probability. The term ‘plausible’ refers to something that seems capable of being admitted, accepted or considered true; something that is acceptable, admissible, credible, possible, tenable or cogent.
77 Understood in that way, the concept of ‘plausibility’ does not require the person allegedly injured by an infringement of competition law to demonstrate a particularly high degree of probability that the three conditions for liability are met. On the contrary, and as the Advocate General observed in point 76 of his Opinion, having regard to its usual meaning, the concept of ‘plausibility’ of the claim for damages suggests that it is necessary, and sufficient, for that person to convince the national court ruling on his or her request for the disclosure of evidence that the assumption that those three conditions are met is reasonably acceptable.
78 In the second place, that interpretation is supported by a contextual analysis of the concept of ‘plausibility’ of the claim for damages set out in Article 5(1) of Directive 2014/104.
79 In that regard, it is important, first, to observe that, in the general scheme of Article 5(1) of Directive 2014/104, read in the light, in particular, of recitals 6, 14 and 15 thereof, the fact that the claim for damages has been demonstrated to be plausible does not result in compensation being awarded in the context of an action on the merits. Rather, it leads to the issuance of an order for the prior disclosure of evidence necessary for such an action to be effective. The standard of proof required to obtain the evidence necessary for the purposes of the main action must be lower than that required for the purpose of establishing that the conditions for incurring substantive liability are satisfied, otherwise the procedural rules governing the main action and the request to produce evidence could be confused and their exercise made excessively difficult, if not impossible.
80 Secondly, it is important to note that, in accordance with Article 5(1) of Directive 2014/104, the plausibility of the claim for damages must be substantiated by the claimant by providing a ‘reasoned justification containing reasonably available facts and evidence’. Furthermore, as stated in recital 16 of that directive, ‘it follows from the requirement of proportionality [laid down in Article 5(3) of that directive] that disclosure can be ordered only where a claimant has made a plausible assertion, on the basis of facts which are reasonably available to [him or her], that the claimant has suffered harm that was caused by the defendant.’
81 In the light of those factors, it must be held that the fact that the ‘plausibility’ of the claim for damages must be established solely on the basis of the facts and evidence which are ‘reasonably available’ to the claimant reflects the intention of the EU legislature not to impose an excessive burden of proof on that applicant. On the contrary, the claimant must simply ‘[make] a plausible assertion’ that an infringement of competition law has caused him or her harm.
82 These factors thus support the interpretation, referred to in paragraph 77 above, that the claimant’s demonstration that its claim for damages is plausible requires it only to convince the national court ruling on its request for the disclosure of evidence that it is reasonably acceptable to assume that the three cumulative conditions for liability are met.
83 In the third place, that interpretation is also the only interpretation which is compatible with the objectives of Directive 2014/104.
84 In that regard, as is apparent from paragraphs 40 to 42 above, that directive seeks, inter alia, to facilitate the exercise of the right to damages and thus to ensure the effectiveness of the private enforcement of competition law.
85 To that end, that directive seeks, inter alia, to remedy the information asymmetry which characterises, as is apparent from recital 14 thereof, actions for damages for infringements of competition law. As pointed out in that recital, 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. In those circumstances, as is apparent from recitals 14 to 16 of Directive 2014/104, a claimant must not be subject to ‘strict legal requirements’ which could unduly prevent the effective exercise of his or her right to compensation.
86 An obligation by which the claimant must establish, in support of his or her request for the disclosure of evidence necessary for the purposes of his or her action for damages, that it is more likely than not that the conditions for liability for an infringement of competition law are met would constitute a strict legal requirement capable of unduly preventing the effective exercise of his or her right to compensation. Such an evidentiary requirement would be incompatible with the objective of facilitating actions for damages, since the standard of proof required would make it virtually impossible or excessively difficult for the claimant to bring an action for damages.
87 The objectives of Directive 2014/104 therefore support the view that the concept of ‘plausibility’ of the claim for damages and of the claimant’s burden of proof should be interpreted as meaning that the claimant must, on the basis of the information reasonably available to him or her, convince the national court ruling on his or her request for disclosure of evidence that it is reasonably acceptable to assume that the three cumulative conditions for liability for an infringement of competition law are met.
88 In the light of the foregoing, the answer to the second question is that Article 5(1) of Directive 2014/104 must be interpreted as meaning that, in order to demonstrate the plausibility of a claim for damages within the meaning of that provision, it is not necessary to establish that it is more likely than not that the conditions for liability for an infringement of competition law are met. It is sufficient for the claimant to demonstrate that the assumption that those conditions are met is reasonably acceptable.
Costs
89 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring 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:
1. 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 applying to a prior action for access to evidence brought before an action for damages, within the meaning of point 4 of Article 2 of that directive, where national law provides for such a prior action.
2. Article 5(1) of Directive 2014/104
must be interpreted as meaning that a decision of the European Commission finding an infringement of EU competition law in the form of a vertical restriction by object is not sufficient to establish the plausibility of a claim for damages, since that claim requires proof not only of the plausibility of such an infringement, as established by such a decision, but also of damage and of a causal link between that damage and that infringement. The fact that that decision was made at the end of a settlement procedure makes no difference to the answer to that question.
3. Article 5(1) of Directive 2014/104
must be interpreted as meaning that, in order to demonstrate the plausibility of a claim for damages within the meaning of that provision, it is not necessary to establish that it is more likely than not that the conditions for liability for an infringement of competition law are met. It is sufficient for the claimant to demonstrate that the assumption that those conditions are met is reasonably acceptable.
[Signatures]
* Language of the case: Portuguese.