Disclosure of evidence under Article 5 of the Damages Directive : a critical analysis

Abstract

The need for a union-wide framework with regards to antitrust enforcement has been felt for a number of years. The approval of Directive 2014/104/EU 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, known simply as the Damages Directive, has paved the way for the harmonization of laws regarding antitrust infringements within member states. The Directive opens the doors for private enforcement of competition law; a novel concept is that of disclosure of evidence which is provided for in article 5 of the Directive. In a nutshell, it provides the injured party the right to ask the national court to “to obtain the disclosure of evidence relevant to their claim.” This new right gives the possibility of injured parties to voice their losses if they are given access to such information and thus even possibly bridge the gap between public and private enforcement. This contribution starts off with what is to be understood by ‘evidence’ and ‘disclosure’ since a proper understanding of this right will require clarification as to what falls within the ambit of the Directive. Then main principles which underpin the disclosure of evidence, mainly consistency, proportionality, effectiveness and transparency are studied. All of this has developed greatly through the case law of the European Union courts which will suffice to prove these rulings have left a notable impact as to the present understanding of disclosure of evidence. Prior to the Directive, the focus of enforcement of competition law had been through public enforcement. This work will look at the shift to increase the role of private enforcement in the competition litigation. This leads to the questioning of the role of private enforcement and whether disclosure will serve this. Ultimately, an overview of the impacts of disclosure within the member states is undertaken, noting its strengths and weaknesses.