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Amsterdam, 2 maart 2023

ECJ clarifies rules on access to evidence in antitrust damages cases

By Stefan Tuinenga

In the cases PACCAR and Ferrer, the European Court of Justice (“ECJ”) ruled on the scope of the right of access to evidence, and on the connection between this right and the national courts’ authority to estimate damages, under the antitrust damages directive.

PACCAR

Both ECJ cases are recent additions to the long list of preliminary references from national courts in trucks cartel damages cases.[1] In PACCAR, the ECJ stressed the importance of remedying the information asymmetry between the infringer of the competition rules and the victim of the damage caused by that behavior. The court finds that this information asymmetry cannot be remedied by merely providing the claimant with unprocessed, pre-existing and possibly very numerous documents. Defendants can therefore be obliged to create documentation ex novo by compiling or classifying information, knowledge or data in its possession.

Ferrer

In the Ferrer case, the ECJ had to rule, inter alia, on the question from a Spanish court whether estimating harm is an appropriate way to assess damage in a situation where the claimant was provided access by the defendant to underlying data of an expert report. The ECJ ruled that a national court can estimate losses resulting from an infringement in all cases where it is practically impossible or excessively difficult to precisely quantify the loss suffered. The fact that access to certain data was provided by the defendant in the case at hand did not preclude that the calculation of damages was still impossible or excessively difficult, this should be assessed on the basis of all circumstances of the case.

It is interesting to note that the advocate general had pointed out that under the arrangements in place between the claimant and defendant in relation to the information, it was difficult to imagine that the access had eliminated the information asymmetry between the parties. Furthermore, even in the absence of an information asymmetry, it can still be impossible to precisely quantify harm because factual situations can be extremely complex. In such a situation it is warranted for a court to estimate the damages.

The road ahead: more disclosure, more estimations

With the PACCAR and Ferrer decisions in place, we expect that cartel victims will be provided more comprehensive access by national courts in civil law damages cases in the Netherlands. Important questions may remain however, such as the question when the data must be provided to the claimants and what conditions may be placed on the documents (such as conditions relating to confidentiality).

With respect to the ability of the court to estimate damages, we observe that this concept fits well within the legal framework of Dutch tort and liability law, as the Dutch Civil Code (“DCC”) already provided the courts with the power to estimate damages (6:97 DCC). Given the increased complexity of cartel cases and damages calculations, the ECJ decision in Ferrer may very well lead Dutch courts to be earlier inclined to estimate damages in cartel civil law follow on proceedings.


[1]          Earlier judgments were of 29 July 2019, Tibor-Trans (C‑451/18, EU:C:2019:635); of 15 July 2021, Volvo and Others (C‑30/20, EU:C:2021:604); of 6 October 2021, Sumal (C‑882/19, EU:C:2021:800); of 22 June 2022, Volvo and DAF Trucks (C‑267/20, EU:C:2022:494) of 1 August 2022, Daimler (Cartels – Refuse collection trucks) (C‑588/20, EU:C:2022:607). The most recent judgment is of 28 February 2023, Dalarjo and Others (C‑285/21).

Stefan Tuinenga

Stefan Tuinenga

Partner, antitrust litigation expert

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