Provisional text

delivered on 12 June 2025 (1)

Case C‑286/24

Meliá Hotels International, S.A.

Associação Ius Omnibus

(Request for a preliminary ruling from the Supremo Tribunal de Justiça (Supreme Court, Portugal))

( 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 – Special action for the disclosure of documents – Plausibility of the claim of damage – Adverse effect on the interests of consumers residing in Portugal – Exercise of the right to bring an actio popularis )

I.Introduction

The present case provides the Court with an opportunity to make a number of clarifications with regard to the private enforcement of competition law, which is now covered by Directive 2014/104/EU. (2)

The questions posed by the Supremo Tribunal de Justiça (Supreme Court, Portugal) relate, in essence, in the first place, to whether a request for the disclosure of evidence made prior to the bringing of an action for damages is subject to the requirements laid down in Article 5(1) of Directive 2014/104, in so far as that provision concerns the plausibility of that action which the claimant must substantiate in order for its request for the disclosure of evidence to succeed, and, in the second place, to the degree of plausibility required by that provision.

In accordance with the Court’s request, this Opinion will be restricted to an analysis of that second issue.

II.Legal framework

A.European Union law

Article 16(2) of Regulation (EC) No 1/2003 (3) provides:

‘When competition authorities of the Member States rule on agreements, decisions or practices under Article [101] or Article [102 TFEU] which are already the subject of a Commission decision, they cannot take decisions which would run counter to the decision adopted by the Commission.’

Article 5(1) to (3) of Directive 2014/104 provides:

‘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.

…

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.

…’

B.Portuguese law

Directive 2014/104 was transposed into Portuguese law by Lei No 23/2018 – Direito a indemnização por infração ao direito da concorrência (Law No 23/2018 – Right to damages following an infringement of competition law) of 5 June 2018 (4) (‘Law No 23/2018’). (5)

Article 12 of Law No 23/2018, entitled ‘Disclosure of evidence in the context of actions 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 rejected.’

Article 13 of that law, entitled ‘Access to evidence before an action for damages is brought’, provides:

‘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 provided for 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.’

III.The facts giving rise to the dispute in the main proceedings, the procedure before the Court and the questions referred for a preliminary ruling

By decision of 21 February 2020, (6) the Commission found that Meliá Hotels International, S.A. (‘Meliá’), to which that decision was addressed, had infringed Article 101 TFEU and Article 53 of the Agreement on the European Economic Area (EEA) in the period between 1 January 2014 and 31 December 2015 by implementing, by means of contracts, vertical practices that differentiated between consumers on the basis of their nationality or country of residence. Those practices restricted active and passive sales of accommodation in Meliá hotels to domestic consumers or those resident in Member States. In view of its cooperation, Meliá benefited from a reduction in the fine imposed on it. That decision was not appealed and became final.

Ius Omnibus, a consumer protection association, brought a special action before the court of first instance with jurisdiction seeking the disclosure of documents held by Meliá which it 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 damage caused to consumers by that practice. That request precedes any collective action for damages. Ius Omnibus stated that it intended to bring such proceedings, in exercise of the right to bring an actio popularis on behalf of the consumers residing in Portugal who had suffered harm, if it could establish, on the basis of the documents requested, that diffuse interests protected by the Portuguese Constitution and homogeneous individual interests of consumers residing in Portugal had been adversely affected by the anti-competitive practice by Meliá that the Commission had identified.

The court of first instance upheld the special 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.

The appeal in cassation brought by Meliá before the Supremo Tribunal de Justiça (Supreme Court) was allowed to proceed by that court.

In those circumstances, the Supremo Tribunal de Justiça (Supreme Court), by decision of 4 March 2024, received at the Court of Justice on 23 April 2024, decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

(1)‘(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 Article 2(4) of that directive?

If the foregoing question is answered in the affirmative:

(2)Does the requirement as to the plausibility of the [claim of harm, arising from] 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 [satisfaction of] the criterion as to the plausibility of the [claim of harm, under] 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?’

Written observations were submitted by the parties to the main proceedings, the Portuguese Government and the Commission. No hearing was held.

IV.Analysis

A.Preliminary observations

Before addressing the legal issues raised by the second and third questions referred for a preliminary ruling, I shall examine, first, the admissibility of the request for a preliminary ruling (section 1) and, second, the premiss underlying the first question and on which the second and third questions are based (section 2). (7)

1.Admissibility of the request for a preliminary ruling

Ius Omnibus states that the request for a preliminary ruling is inadmissible on the ground that the requirements of Article 94 of the Rules of Procedure of the Court of Justice are not satisfied. In its view, the referring court’s statement containing all the relevant facts, the tenor of Portuguese law, the reasons which prompted it to inquire about the interpretation of provisions of EU law and the relationship between those provisions and the dispute in the main proceedings is insufficient. In addition, it claims that that court did not set out reasons supporting the relevance of the second and third questions. Nevertheless, Ius Omnibus invites the Court to find the present reference for a preliminary ruling to be admissible.

I do not agree with Ius Omnibus’s arguments that the present reference for a preliminary ruling does not satisfy the requirements of Article 94 of the Rules of Procedure. As I shall demonstrate, it contains all the material necessary to enable the Court to rule on the present request.

Furthermore, although the referring court does not set out clearly either the reasons which led it to refer the second and third questions for a preliminary ruling or the relevance of the answers to those questions for the main proceedings, its reasoning is nonetheless obvious in the light of the content of those questions. That court seeks to determine, by its second question, whether the plausibility of a claim for damages must be established according to the criterion that ‘harm is more likely to have been caused to the consumers … than not’ and, by its third question, whether it is possible to establish the degree of plausibility required on the basis of a decision of a competition authority, such as the decision of 21 February 2020.

It follows that the second and third questions are admissible.

2.Request for the disclosure of evidence made before the commencement of an action on the merits

The second and third questions – which, as requested by the Court, will be the only questions analysed in this Opinion – have been posed in the event that the Court answers the first question in the affirmative. My analysis of those questions must therefore be based on the premiss that the first question is answered in the affirmative.

For the sake of completeness, and since the answer to the first question is the starting point for analysis of the subsequent questions, I shall make a few brief remarks on the issue to which it relates.

According to the wording of the first question, the referring court is seeking to determine whether Article 5(1) of Directive 2014/104 is applicable to a request for the disclosure of evidence made prior to the bringing of an action for damages. That question appears to concern, in reality, whether the requirements laid down in that provision, relating to the plausibility of the claim for damages which the claimant must substantiate, are applicable to that request for the disclosure of evidence.

It should be noted that the first question should not be understood as meaning that the referring court is seeking to ascertain whether, in accordance with Article 5(1) of Directive 2014/104, a Member State is required to provide for the possibility that a request for the disclosure of evidence can be made before an action for damages is brought. Such a possibility has been provided for by the Portuguese legislature.

Moreover, it appears that the Portuguese legislature read that directive as requiring the Member States to provide for the possibility of making a request for the disclosure of evidence, as referred to in Article 5 of that directive, only in the context of an action for damages. That provision was transposed into Portuguese law by Article 12 of Law No 23/2018.

According to the Portuguese legislature’s reading of Directive 2014/104, a Member State is nevertheless able to provide for the possibility that such a request may be made before an action on the merits is brought. As the Portuguese Government observes, the Portuguese legislature made use of its ability to do so and provided for that possibility in Article 13 of Law No 23/2018. The main proceedings appear to relate to such a request.

In that regard, in my Opinion in PACCAR and Others, (8) the issue of requests for the disclosure of evidence made before an action on the merits, in the context of analysis of the scope of Directive 2014/104. Accordingly, I examined whether that directive was applicable in the main proceedings in that case in order to dispel any possible doubt as to the Court’s jurisdiction to answer questions referred for a preliminary ruling concerning the interpretation of the provisions of that directive.

I would point out that, in that case, the referring court had not raised that issue. However, it was not clear from the order for reference whether the request for the disclosure of evidence had been made in the context of an action for damages or before that action was brought. I therefore examined whether, and if so under what conditions, that request fell within the scope of Directive 2014/104.

Examination of that question led me to find that, even assuming that Directive 2014/104 covers only requests for the disclosure of evidence made in the context of an action for damages, where such a request is made, technically speaking, before the action for damages is brought, it can fall within the scope of that directive. It can be found, at least in certain situations, that such a request is being made in the context of an action for damages or that it conditionally commences such an action. I took the view that that is so where an action for damages must be brought, subject to penalties, within a short period of the making of a request for the disclosure of evidence in the context of which the plausibility of the claim for damages has been substantiated, or, possibly, within a short time after that request has been granted.

Where a request for the disclosure of evidence has the characteristics described above, first, the requirements laid down in Article 5(1) of Directive 2014/104 are applicable to it and, second, the Court has jurisdiction to answer a question on the interpretation of that provision referred by a court hearing such a request.

The action for access to evidence provided for in Portuguese law does not appear to have the characteristics referred to in point 28 of this Opinion. The requirements laid down in Article 5(1) of Directive 2014/104 could nevertheless be applicable to that action and the Court would have jurisdiction to answer a question on the interpretation of that provision.

Article 5(8) of Directive 2014/104 authorises Member States, without prejudice to Article 5(4) and (7) or to Article 6, to lay down rules which would lead to wider disclosure of evidence. A Member State may therefore provide for the possibility that a request for the disclosure of evidence can be made before an action for damages is brought and may even make that request subject, in all respects, (9) to the rules laid down in Article 5 of that directive.

In that situation, the Court would have jurisdiction to answer questions relating to Article 5(8) of Directive 2014/104 that have been referred for a preliminary ruling by a court hearing such a request, in accordance with the Court’s case-law on situations in which the provisions of EU law are applicable to a dispute on account of a direct and unconditional reference made by national law which has the effect of extending the scope of EU law. (10)

In that regard, it is likely that the Portuguese legislature intended that an action for access to evidence, brought before an action on the merits, should be subject to the rules laid down in Article 5 of Directive 2014/104. According to Article 13(2) of Law No 23/2018, the detailed rules laid down in Article 12 of that law and, therefore, in Article 5 of that directive apply mutatis mutandis to the actions referred to in Article 13 of that law.

Irrespective of the characteristics of the action for access to evidence provided for in Portuguese law, the Court therefore has jurisdiction to answer the questions relating to Article 5(1) of Directive 2014/104 referred for a preliminary ruling by a national court hearing such an action under Article 13 of Law No 23/2018.

B.Substance

As a preliminary point, I note that the actual wording of the second and third questions refers to the plausibility, as referred to in Article 5(1) of Directive 2014/104, of the harm. In fact, according to that provision, claimants may obtain from the national court an order requiring the defendant or a third party to disclose relevant evidence provided that they have substantiated the plausibility of their claim for damages by presenting sufficient reasonably available facts and evidence. (11)

In that regard, I would point out that the existence of harm is one of the constitutive conditions governing liability for an infringement of competition law. In order for such liability to be incurred, three conditions must be fulfilled: the existence of damage (harm), a causal link between the damage and the conduct alleged, and the illegality of such conduct. (12) That liability can be established by means of an action for damages. Article 5(1) of Directive 2014/104 must therefore be interpreted as meaning that the claimant is required to make a plausible assertion that those three conditions are fulfilled.

Accordingly, despite the divergence between the wording of the second and third questions, on the one hand, and the wording of Article 5(1) of Directive 2014/104, on the other, those questions concern the plausibility of the three constitutive conditions governing liability for an infringement of competition law. That is confirmed, in particular, in the second question, by which the referring court seeks to ascertain whether the requisite degree of plausibility must be established by applying the criterion of whether ‘harm is more likely to have been caused to the consumers … than not’. That criterion refers both to the harm and to the link between that harm and the conduct alleged. I therefore propose that the second question be reformulated to the effect that, by that question, the referring court is seeking to ascertain whether, in order to substantiate the plausibility of a claim for damages, in accordance with Article 5(1) of Directive 2014/104, it must be demonstrated that it is more likely than not that the constitutive conditions governing liability for an infringement of competition law have been fulfilled.

As a further preliminary point, I note that it is necessary to examine the second and third questions in reverse order.

The referring court asks, by the second question, whether Article 5(1) of Directive 2014/104 must be interpreted as meaning that, in accordance with that provision, the degree of plausibility required is to be determined on the basis of the criterion that it is more likely than not that the constitutive conditions governing liability for an infringement of competition law have been fulfilled, and, by its third question, whether that provision must be interpreted as meaning that the plausibility of a claim for damages may be established exclusively on the basis of a Commission decision identifying an infringement.

The second question is more general than the third, and an affirmative answer to that third question would remove the need to answer the second. I shall therefore begin my analysis with the third question.

1.The third question

By its third question, the referring court asks, in essence, whether a decision identifying an infringement of competition law is sufficient to establish the plausibility of a claim for damages relating to harm resulting from that infringement. In particular, that court asks whether the plausibility of such a claim can be established, under Article 5(1) of Directive 2014/104, exclusively on the basis of the existence of a decision adopted by the competent competition authorities (section a). In addition, it seeks to ascertain whether the fact that such a decision concerns a vertical restriction by object (section b) and was issued as part of a settlement procedure (section c) has a bearing on the answer to be given to that question.

(a)Is a decision identifying an infringement sufficient to substantiate the plausibility of a claim for damages?

In essence, the third question concerns whether Article 5(1) of Directive 2014/104 must be interpreted as meaning that a national court hearing a request for the disclosure of evidence may assess the plausibility of a claim for damages exclusively on the basis of a Commission decision identifying an infringement of competition law.

I would say at the outset that, in my view, a decision identifying an infringement is not sufficient to substantiate the plausibility of a claim for damages.

As is apparent from Article 16(2) of Regulation No 1/2003, national courts cannot take decisions which would run counter to a decision adopted by the Commission identifying an infringement of Article 101 TFEU. Moreover, a national court ruling on an infringement identical to that addressed by the decision of 21 February 2020 is required to accept that that infringement exists. By contrast, the existence of harm and of a direct causal link between that harm and the infringement in question remains a matter to be assessed by the national court. (13)

Consequently, where there is a decision identifying an infringement of competition law, a court hearing a request for the disclosure of evidence is not required to examine whether, in the light of the available facts and evidence, the plausibility of the existence of the infringement has been established. However, the illegality of the conduct alleged is only one of the constitutive conditions governing liability for an infringement of competition law. As I have stated, (14) substantiating the plausibility of a claim for damages effectively entails establishing the requisite degree of plausibility in respect of the three constitutive conditions governing that liability. Consequently, accepting that an infringement exists is not sufficient, in itself, to establish the plausibility of such a claim.

(b)Decision relating to a vertical practice restricting competition by object

The referring court asks the Court whether the fact that a decision identifying an infringement of competition law concerns a vertical restriction by object is capable of substantially altering the answer to be given to the third question.

I consider that it cannot do so and that national courts cannot base their assessment of the plausibility of a claim for damages exclusively on the existence of such a decision.

In the first place, I note, on that point, that Article 17(2) of Directive 2014/104 establishes a rebuttable presumption that cartel infringements cause harm. That presumption, as provided for by the EU legislature, does not, however, cover vertical restrictions of competition.

According to recital 47 of Directive 2014/104, the rebuttable presumption provided for in Article 17(2) should be limited 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. In addition, Article 2(14) of that directive defines the concept of ‘cartel’, in essence, as an agreement or concerted practice between two or more competitors aimed at coordinating their competitive behaviour on the market or influencing the parameters of competition through certain practices. That definition does not correspond to that of a vertical practice, involving undertakings which operate at different levels of the production or distribution chain and which are therefore not competitors.

Furthermore, according to academic research, (15) Article 17(2) of Directive 2014/104 has been transposed differently in various Member States. Some have chosen to give the concept of ‘cartel’ a broader definition than that provided for in Article 2(14) of Directive 2014/104, or even expressly to extend the scope of that presumption to vertical restrictions of competition. That transposition lacking in uniformity among the Member States, some of which clearly wish to broaden the definition of the concept of ‘cartel’ provided for in that directive, supports the interpretation that the presumption in question, as provided for by the EU legislature, covers only cartels corresponding to the definition set out in Article 2(14) of that directive.

Also in that context, I note that it is for the referring court to determine whether the Portuguese legislature has decided that the presumption provided for in Article 17(2) of Directive 2014/104 is applicable to vertical restrictions. There is nothing to suggest that it has done so.

In the second place, nor is the fact that a decision identifying an infringement of competition law concerns not a vertical restriction by effect but a vertical restriction by object capable of calling into question the finding that a national court’s determination that the criterion relating to the plausibility of a claim for damages, laid down in Article 5(1) of Directive 2014/104, is satisfied cannot be based exclusively on the existence of that decision.

EU competition law 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. (16) In the case of a restriction by object, it is not necessary to examine the restrictive effects of the practice concerned. (17) A finding that such a restriction exists does not mean, however, that harm has been caused to a specific person or that there is a causal link between that restriction and that harm. Those constitutive conditions governing liability for an infringement of competition law must be established before the court hearing the action for damages.

In the same vein, as regards the request for the disclosure of evidence under Article 5(1) of Directive 2014/104, the degree of plausibility required must also be substantiated by the applicant as regards both those conditions, namely the existence of harm and the existence of a direct causal link between that harm and the infringement in question.

For the sake of completeness, I note that neither the fact that vertical restrictions are not covered by the presumption laid down in Article 17(2) of Directive 2014/104 (18) nor the fact that evidence of restrictions by object is not subject to special rules as regards the three constitutive conditions governing liability for an infringement of competition law (19) implies that a decision identifying a vertical restriction by object is irrelevant for the purposes of assessing the plausibility of a claim for damages.

First, a national court hearing a request for the disclosure of evidence is required to accept the existence of an infringement of competition law referred to in that decision, with the effect that one of the constitutive conditions governing liability is not only plausible but established. (20)

Second, the concept of ‘restriction of competition by object’ concerns conduct causing a high degree of harm to competition, that is to say, capable of causing great direct or indirect harm to users and to consumers in the various sectors or markets concerned. (21) The degree of harm which such conduct is capable of causing is, in conjunction with other facts and evidence reasonably available to the claimant, relevant for the purposes of establishing the plausibility of a claim for damages, in accordance with Article 5(1) of Directive 2014/104.

(c)Decision adopted as part of a settlement procedure

The referring court draws attention to the fact that the decision of 21 February 2020 was adopted as part of a settlement procedure and asks the Court whether that fact could have a bearing on the answer to be given to the third question.

I am of the view that it cannot.

The decision of 21 February 2020, adopted as part of a settlement procedure, constitutes a final decision pursuant to Article 7 or Article 23 of Regulation No 1/2003. (22) Unlike a decision on commitments adopted on the basis of Article 9 of that regulation, (23) a decision adopted as part of a settlement procedure contains a finding of infringement of Article 101 TFEU or of Article 102 TFEU. The fact that the undertaking to which that decision is addressed can benefit from a reduction in the amount of the fine does not alter the nature of the finding relating to that infringement.

Consequently, the fact that a Commission decision identifying an infringement of competition law was adopted as part of a settlement procedure does not, in view of the considerations set out in point 45 of the present Opinion, have any bearing on the question of whether a national court’s determination that the criterion relating to the plausibility of the claim for damages, laid down in Article 5(1) of Directive 2014/104, is satisfied can be based exclusively on the existence of a decision adopted by the competent competition authority.

(d)Interim conclusion

The answer to the third question is that Article 5(1) of Directive 2014/104 must be interpreted as meaning that a decision identifying an infringement of competition law is not sufficient to establish the plausibility of a claim for damages. The fact that that decision concerns a vertical restriction by object and was adopted as part of a settlement procedure does not call that consideration into question.

2.The second question

(a)The scope of the second question

By its second question, the referring court asks the Court, in essence, whether, in order to substantiate the plausibility of a claim for damages, in accordance with Article 5(1) of Directive 2014/104, it must be demonstrated that it is more likely than not that the constitutive conditions governing liability for an infringement of competition law have been fulfilled.

That court does not set out the nature of the criterion described in its second question. Furthermore, the criterion adopted by the lower courts in the main proceedings is also unclear.

According to Ius Omnibus, it cannot be ruled out that the referring court was unaware of the criterion applied by the lower courts and considered itself able to set aside the judgment under appeal for failure to state reasons. The referring court accordingly wishes to obtain clarification on the criterion to be applied so that it can clarify that criterion for the lower courts in its forthcoming judgment.

Alternatively, the reference for a preliminary ruling could be understood to the effect that Meliá disputes the criterion adopted by the lower courts and is arguing that they should have applied the stricter criterion described in the second question. If that is so, as Ius Omnibus states, the second question should be understood as seeking to determine whether Article 5(1) of Directive 2014/104 must be interpreted as meaning that, when transposing that article into national law, a Member State may not establish a criterion that is less strict than the criterion described in that question.

By the judgment at first instance, which was upheld on appeal, the lower courts did in fact order Meliá to disclose the documents requested by Ius Omnibus. The referring court is ruling on an appeal in cassation brought by Meliá against that judgment.

Meliá submits, in its written observations, that under Article 5(1) of Directive 2014/104 there must be a degree of probability going beyond the mere possibility of the existence of harm. Specifically, Meliá considers that that provision must be interpreted as meaning that it requires not merely a possibility of the existence of harm, but rather that there is a real probability that harm occurred; that is to say, that in the light of the factual, legal and economic context in question the existence of harm must be more likely than not, or, at the very least, must be a strong, or in other words well-founded, probability.

In addition, Meliá observes that the Portuguese courts have held, in other cases relating to general civil law, that the concept of plausibility goes beyond the realm of mere possibility and implies a degree of certainty of more than 50%.

That observation is partially confirmed by Ius Omnibus, which states that in the Portuguese legal order there are also those who defend the position that the general standard of proof in civil proceedings is the ‘more likely than not’ criterion. That said, Ius Omnibus submits that that criterion should be adjusted according to the context in which it applies. Such an adjustment is required by Article 13(2) of Law No 23/2018, according to which the conditions laid down in Article 12(2) to (9) of that law are to apply mutatis mutandis to a request for the disclosure of evidence made before an action for damages is brought.

Irrespective of the nuances of the situation with which the referring court is faced, (24) that court’s aim is clear: to ascertain whether Article 5(1) of Directive 2014/104 lays down a criterion requiring a degree of plausibility such as that described in the second question, namely a criterion that it is more likely than not that the constitutive conditions governing liability for an infringement of competition law have been fulfilled.

It should be added, in that regard, that the degree of plausibility required under Article 5(1) of Directive 2014/104 is the highest that can be required. In accordance with Article 5(8) of that directive, a Member State may, without prejudice to Article 5(4) and (7) or to Article 6 thereof, lay down rules which would lead to a wider disclosure of evidence. In order to facilitate access to evidence, a Member State may decide to set the degree of plausibility below that required by Article 5(1) of that directive. By contrast, a Member State cannot establish a criterion requiring a higher degree of plausibility than that established by the EU legislature.

In order to answer the second question, it is therefore necessary to determine whether Directive 2014/104 establishes a criterion whereby the degree of plausibility required is that it must be more likely than not that the constitutive conditions governing liability have been fulfilled, or whether that directive allows a lower degree of plausibility than that described in that question.

(b)Assessment

The criterion described in the second question appears to be based on a balance of probabilities. According to that understanding of that criterion, it is for the claimant to show that it is more plausible than not that the consumers represented – in the present case consumers residing in Portugal – have suffered harm.

I am of the view that the standard of proof required by Article 5(1) of Directive 2014/104 to substantiate a request for the disclosure of evidence is lower than the standard of proof based on such a balance of probabilities.

In the first place, the terms used in the various language versions of Article 5(1) of Directive 2014/104 do not appear to imply overly stringent requirements. As the Commission notes, the terms used in the Portuguese (‘plausibilidade’), German (‘Plausibilität’), English (‘plausibility’) and French (‘plausibilité’) versions of that directive, to which I would add the Polish version (‘uprawdopodobnienie’), refer, according to their dictionary definitions, to situations in which a claim is, or appears to be, reasonable or acceptable. (25) Those terms therefore suggest that it is necessary to satisfy the court ruling on the request for the disclosure of evidence that it is reasonably acceptable to assume that, in the case before it, the three cumulative conditions governing liability have been fulfilled.

In the second place, it should be noted that, in addition to the dictionary definitions of the terms used in the various language versions of Article 5(1) of Directive 2014/104, the national transpositions of that provision, at least in the law of some Member States, follow the same logic. That is the case, in particular, in German (26) and Polish (27) law. As regards the requisite degree of plausibility, the transposing provisions in force in those Member States provide merely for a reasonably acceptable probability.

That provision was transposed into Polish law by Article 17(1) of the ustawa o roszczeniach o naprawienie szkody wyrządzonej przez naruszenie prawa konkurencji (Law of 21 April 2017 on compensation for harm caused by an infringement of competition law). That law establishes the criterion of probability (‘uprawdopodobnienie’) in respect of a claim for damages. Academic writers have observed that that law refers to the general rules of civil procedure. The criterion laid down in that provision should be interpreted as meaning that, in order for such a claim to be found to be plausible, the assertion of its existence must be reasonably acceptable, and its credibility, in the light of the evidence submitted, must not be negligible. The assessment of that claim is simplified and based on a prima facie evaluation rather than on a detailed analysis. See, in that regard, Machnikowski, P., in Lis-Zarrias K., Machnikowski, P. (ed.), Ustawa o roszczeniach o naprawienie szkody wyrządzonej przez naruszenie prawa konkurencji. Komentarz, CH BECK, Warsaw, 2018, paragraph 16.

28

See judgment of 10 November 2022, PACCAR and Others (C‑163/21, EU:C:2022:863, paragraph 44).

29

See, to that effect, judgment of 16 February 2023, Tráficos Manuel Ferrer (C‑312/21, EU:C:2023:99, paragraphs 42 to 44).

30

See Smith, M., ‘Civil liability and the 50%+ standard of proof’, The International Journal of Evidence & Proof, 2021, Vol. 25, No 3, p. 183.

31

See Rodger, B., ‘United Kingdom’, in Rodger, B., Sousa Ferro, M., Marcos, F. (ed.), The EU Antitrust Damages Directive: Transposition in the Member States, op. cit., p. 382.

32

See judgment of 10 November 2022, PACCAR and Others (C‑163/21, EU:C:2022:863, paragraph 43).

33

See point 84 of the present Opinion.