Private Enforcement: The Court Of Justice Of The European Union Clarifies The Conditions Under Which A National Court May Order The Production Of Evidence Held By A Competition Authority

• Jurisdiction: European Union
• Law Firm: Kramer Levin Naftalis & Frankel LLP
• Subject Matter: ntitrust/Competition Law, Antitrust, EU Competition
• Author: Mr Marco Plankensteiner, Mathilde Vergnaud, Pauline Dessèvre and Alice Mollot
• Published date: 02 March 2023

In a judgment published on Jan. 12, 2023 (Case C-57/21, RegioJet a.s.), the Court of Justice of the European Union strengthens the right to access to the file for victims of anticompetitive practices. According to the Court's ruling, national courts may order the disclosure of evidence held by a competition authority for the purpose of bringing a private enforcement action for compensation of competitive harm, even though the proceeding to establish the infringement was suspended by such competition authority following the opening of a Commission investigation regarding the same infringement. However, the national court must ensure that the disclosure of evidence is indeed necessary and proportionate for the assessment of the claim for damages before it.

The solution is different for "grey list" evidence, which includes "information prepared specifically for administrative proceedings initiated by a competition authority, information the authority drew up and sent to the parties in the course of those proceedings, and settlement submissions that were withdrawn". Article 6(5) of Directive 2014/104 provides that national courts may order the disclosure of grey list evidence "only after a competition authority, by adopting a decision or otherwise, closed the proceedings".

In the present case, the court found that the Czech competition authority's suspension of the proceedings because the Commission had started investigation proceedings concerning the same facts did not constitute closure by that authority of the initial proceedings. Consequently...