GENERAL CONTEXT

88. Chapter II PDD includes Articles 5–8 PDD and deals with different aspects of the disclosure of evidence.

89. Claimants that wish to bring an action for damages based on infringements of competition law are confronted with an information asymmetry. The evidence necessary to prove a claim for damages is often held exclusively by the opposing party or a third party61 (recital 14 PDD). The PDD therefore creates meaningful and autonomous competence for national courts to order disclosure of evidence from parties to the proceedings and from third parties.

90. The PDD seeks to impose minimum disclosure requirements (Article 5(8) PDD) which will apply in the national courts. Article 5(1) PDD provides that national courts must have the power to order the defendant or a third party to disclose relevant evidence which lies “in their control” provided that the claimant has presented a reasoned justification containing reasonably available facts and evidence sufficient to support the plausibility of its claim for damages. In order to ensure equality of arms, national courts must also be able to order the claimant or a third party to disclose relevant evidence upon request of the defendant (recital 15 PDD). This will be particularly relevant in cases where the defendant invokes a passing-on defence (Article 13 PDD).

91. National courts must be able to order disclosure of “specified items of evidence “ or “relevant categories of evidence “ circumscribed as precisely and as narrowly as possible on the basis of reasonably available facts set out in the reasoned justification.63 Furthermore, disclosure of evidence under Article 5 PDD must be proportionate. Particular attention should be paid to preventing “fishing expeditions “ (i.e. non-specific or overly broad searches for information unlikely to be of relevance to the parties to the proceedings) (recital 23 PDD).64 National courts must have effective measures at their disposal to protect the disclosure of confidential information (Article 5(4) PDD). Legal privilege must also be respected (Article 5(6) PDD).