The CJEU clarifies articles 5 and 6 of the Damages Directive

In the context of a dispute between a Czech rail passenger transport company, RegioJet, and the state-owned railway operator, Ceské Dráhy, the Czech Supreme Court referred a number of questions to the Court of Justice of the European Union (“CJEU”), which has recently answered in its preliminary ruling of January 12, 2023 (Case C-57/21).

The facts date back to 2012, when the Czech competition authority (“UOHS”) initiated administrative proceedings of its own motion concerning a possible abuse of a dominant position by Ceské Dráhy. In 2016, the UOHS had to stay its administrative proceedings as the European Commission decided to open an investigation on alleged predatory pricing by Ceské Dráhy in the provision of rail passenger transport services.

Following the proceedings initiated by the UOHS and prior to their suspension, RegioJet brought an action in 2015 for the damage allegedly suffered as a result of Ceské Dráhy’s conduct. It requested the Prague Municipal Court to disclose certain documents of Ceské Dráhy, such as itemized financial statements, reports concerning public railway transport, and the accounts of Ceské Dráhy’s commercial segment.

The documents in question were in the possession of the Czech competition authority since the beginning of the administrative proceedings initiated in 2012, although it stated that they could not be disclosed until the final conclusion of those proceedings.

Consequently, the Czech Supreme Court referred a question to the CJEU for a preliminary ruling on the interpretation of articles 5 and 6 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 (“Damages Directive”).

Article 6 of the Damages Directive—like article 283 bis(i) of the Spanish Code of Civil Procedure resulting from its transposition—distinguishes three categories of evidence from the file of a competition authority: (i) black list documents, including leniency statements and settlement submissions, which may not be disclosed at any time; (ii) grey list documents, including the information prepared specifically for the proceedings initiated by a competition authority, which may only be disclosed after their conclusion; and (iii) white list documents, i.e., evidence in the file of a competition authority that does not fall into any of the above categories, which may be disclosed at any time.

The level of protection thus differs according to the information requested. There is also a specific regime under which requests are not automatically granted but are assessed in terms of the principle of proportionality, taking into account the circumstances and legitimate interests involved.

In its judgment, the CJEU concludes that a national court may order the disclosure of white list documents in private enforcement proceedings—even if they have been suspended due to the opening by the Commission of an investigation into the same infringement.  However, national courts must limit the disclosure of evidence to what is strictly relevant, proportionate and necessary.

The CJEU clarifies that national courts may pursue proceedings relating to actions for damages even if other proceedings are pending before a competition authority. In this regard, the fact that the UOHS had stayed the administrative proceedings cannot be equated to their closure, so that it would not be appropriate to lift the time limitation applicable to the disclosure of grey list documents.

In relation to grey list documents, the CJEU explains that the temporary protection does not cover all the documents submitted at the request of the competition authority, but only the information specifically prepared for the proceedings (see recital 28 of the Directive regarding pre-existing information).

Finally, the CJEU establishes that national courts may order the disclosure of documents that could fall within the grey list with the sole intention of placing them under sequestration. Likewise, national courts may only disclose the documents to the claimant after verifying whether they contained evidence falling within the grey list. In this regard, it should be recalled that article 6(7) of the Damages Directive already expressly provided for this possibility, albeit only for black list evidence.