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Lowering the bar for disclosure in antitrust damages claims: the AG opinion in the Meliá case

On 12 June 2025, Advocate General Szpunar (“AG”) issued an opinion on the degree of plausibility of a claim that is required under Article 5 of the Antitrust Damages Directive for claimants to obtain disclosure of evidence in the context of an antitrust damages action. In his opinion, the AG confirms that the standard of proof should be lower than « more likely than not ». It is sufficient for a plaintiff to demonstrate that it is « reasonably acceptable » to assume that the conditions governing liability for an infringement of competition law are fulfilled.

Background of the case

On 21 February 2023, the European Commission (“Commission”) found that Meliá Hotels International, S.A. (“Meliá”), a Spanish hotel group, had infringed Article 101 TFEU. The infringement related to vertical agreements that imposed restrictions on active and passive sales.

Following this decision, the representative organization for consumers Ius Omnibus initiated civil proceedings before the Portuguese courts. Ius Omnibus sought the disclosure of specific documents held by Meliá based on the Portuguese legislation implementing Article 5(1) of Directive 2014/104/EU (“Antitrust Damages Directive”), which governs access to evidence in actions for damages arising from infringements of competition law.

Ius Omnibus submitted that the requested evidence was necessary to determine and substantiate both the scope and the effects of the anti-competitive conduct identified by the Commission. Furthermore, the documents would assist in establishing and quantifying the harm caused to consumers by the infringement.[1]

Questions posed to the ECJ

The Portuguese Supreme Court submitted a request for a preliminary ruling to the European Court of Justice (“ECJ”) seeking clarification of the requirement in Article 5(1) of the Antitrust Damages Directive that a claimant must substantiate the “plausibility” of an action for damages in order for its request for the disclosure of documents in the possession of the defendant or third party to be granted.
More specifically, the national court asked whether an infringement decision adopted by a competition authority, in this instance the Commission’s decision against Meliá, established plausibility under Article 5(1) and, if not, whether it was necessary for the claimant to substantiate that it was more likely than not that harm was caused to consumers by the infringement.

The opinion of AG Szpunar

The AG concluded that an infringement decision is not sufficient, on its own, to establish the plausibility of a claim for damages because:

• Three conditions must be fulfilled for a party to be held liable for an infringement of competition law, and subsequently for damages: (i) the existence of damage (harm), (ii) a causal link between the damage and the conduct alleged, and (iii) the illegality of the conduct;
• An infringement decision (or a settlement decision) finding an infringement of competition law definitively establishes the illegality of the conduct (the last criterion above), but it does not automatically establish the other two conditions. It remains for the national court to assess the plausibility of both in deciding whether to grant a claimant’s request for disclosure;
• The rebuttable presumption in Article 17(2) of the Antitrust Damages that cartel infringements cause harm does not apply to vertical restrictions of competition (which were at issue in the present case);
• The fact that the conduct at issue restricted competition “by object” does not change the analysis because it does not automatically establish that a specific person has been harmed and that there is a direct causal link between the restriction and that harm. Nevertheless, it is relevant for the plausibility assessment that “by object” restrictions of competition are  inherently capable of causing great direct or indirect harm to users and to consumers in the various sectors or markets concerned.

The AG then provided guidance to the national court on how the plausibility assessment is to be conducted. He clarified that the standard of proof in the context of disclosure proceedings is lower than the standard of proof for liability in proceedings on the merits. This means that a claimant seeking the disclosure of documents does not need to demonstrate that it is « more likely than not » that the conditions of harm and causality are met. It is enough that the court is satisfied that it is « reasonably acceptable » to assume that the conditions are met.

Applying a « balance of probabilities » or « more likely than not » criterion would typically require a court to establish and compare two scenarios (one where the claim is likely to succeed and one where it is not). However, the AG confirmed that the assessment by a national court for ordering disclosure at an initial stage, or even before proceedings begin, should be, by its very nature, a simplified assessment. The court should focus its analysis on the plausibility of a single scenario where the conditions governing liability have been fulfilled, rather than a full comparison of probabilities.

The AG emphasized that the ability to obtain access to documents is functionally linked to the effective exercise of the right to full compensation for harm caused by competition law infringements. If the degree of plausibility required were too strict, it would unduly impede claimants from effectively exercising their right to compensation and would weaken the overall effectiveness of competition rules.

Implications for future cases

The AG opinion provides a welcome clarification of the requirements for disclosure under Article 5 of the Antitrust Damages Directive. If the AG’s opinion is followed, national rules imposing a higher degree of plausibility than this « reasonably acceptable » standard should be disapplied, thus facilitating access to evidence for claimants. It should be noted that the Antitrust Damages Directive provides for minimum harmonization, meaning that member states may apply a lower bar for disclosure, but not a higher bar.

In the Netherlands, the Dutch legislator did not find it necessary to implement Article 5 Antitrust Damages Directive because the existing disclosure regime (then: article 843a Dutch Code of Civil Procedure) would already provide more room for disclosure than the Antitrust Damages Directive prescribes.  However, the case-law in Dutch antitrust damages actions paints a very different picture: claims by injured parties for access to information in the possession of cartelists are often dismissed, in particular because they are deemed to be ‘premature’. This is hard to reconcile with the Antitrust Damages Directive (see also our earlier article here).

The Antitrust Damages Directive makes clear that the European legislator considers the elimination of information asymmetry of great importance for effective private enforcement, and that claimants have a right of disclosure not only during an ongoing damages case, but also in preparation for a claim.[1] The AG opinion in the Melia case once again confirms this.

Delaying access to information, or imposing a high bar for access, does not do justice to claimants’ interests in access to information. Under Article 5 of the Antitrust Damages Directive, courts may apply a proportionality test, taking into account the legitimate interests of all parties and third parties involved. However, systematically rejecting information requests as premature in this context does not do justice to the importance of the information to claimants, and the importance of accessing information at an early stage.

Information requests in cartel damages proceedings are often voluminous, and not infrequently involve data to be processed by outside experts such as economists. Access at an early stage of the proceedings can avoid the need to hold up the proceedings at a later stage to analyze the information.

Early-stage access can also facilitate settlement: by having access to relevant information, claimants can better assess their litigation position, and financial and economic data can contribute to a more detailed calculation of damages suffered. Early access thus benefits the litigation efficiency and effectiveness of antitrust damages actions.

The Dutch legislator has introduced a new disclosure regime per 1 January 2025 (Articles 194 and 195 Dutch Code of Civil Procedure). It remains to be seen whether the new disclosure regime, and the guidance from the AG in the Melia case, will assist claimants in obtaining access to information at an early stage, or in preparation of antitrust damages proceedings.

A judgment by the ECJ in the Melia case is expected later this year.

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[1]                The request for disclosure was made prior to the initiation of the damages action, a procedural possibility provided for by the Portuguese legislation implementing the Antitrust Damages Directive. The AG confirmed that Member States are free to lay down rules which would lead to wider disclosure of evidence and to make the conditions of Article 5(1) of the Damages Directive applicable to such earlier proceedings (as the Portuguese legislature had decided to do). Even absent such provisions in implementing legislation, however, AG Szpunar concluded in an earlier case that Article 5(1) of the Antitrust Damages Directive applies to disclosure proceedings initiated before an action for damages at least where such a request was made ‘in the context’ of an action for damages.