The CJEU clarifies the limits and requirements governing access to evidence prior to bringing an antitrust damages action

On 29 January 2026, the Court of Justice of the European Union delivered a judgment (Case C-286/24, Ius Omnibus) of significant practical relevance for the private enforcement of competition law. The Court examines in notable detail the legal regime governing actions seeking access to evidence prior to the filing of a damages claim for an antitrust infringement.

In particular, the judgment clarifies the scope of Article 5(1) of Directive 2014/104/EU with respect to autonomous and preliminary applications for access to evidence, and it establishes a flexible standard of “plausibility” regarding the viability of the damages action, consistent with the principle of effectiveness. Moreover, the Court uses the opportunity to refine the balance between the right of access to evidence and the need to protect against abusive requests, thereby reinforcing the role of the national judge as guardian of that balance.

1. Background to the case and the questions referred to a preliminary ruling

The facts leading to the questions referred by the Portuguese Supreme Court –addressed by the CJEU in the above‑mentioned judgment– are as follows:

• The dispute originated in the European Commission’s Decision of 21 February 2020 (Case AT.40528), which found that a hotel company had infringed Article 101 of the Treaty on the Functioning of the European Union (TFEU) by including in its contracts with tour operators and distribution platforms clauses restricting active and passive sales based on the nationality or place of residence of consumers within the European Economic Area.
• The Commission characterised these practices as a vertical restriction by object, insofar as they were intended to partition national markets and restrict intra‑EU trade. The decision was adopted under a settlement procedure, and the company was fined a reduced amount in light of its cooperation.
• On the basis of that decision, Associação Ius Omnibus brought before the Portuguese courts a special declaratory action for access to documents under Article 13 of Portuguese Law No 23/2018, which transposes the Damages Directive (a mechanism that is functionally similar to Article 283 bis of the Spanish Civil Procedure Act, which implements Article 5(1) of the Directive into Spanish law). The action was brought prior to the filing of a collective damages claim and aimed at obtaining information necessary to assess the existence, scope and quantification of the harm allegedly suffered by Portuguese consumers.
• The Portuguese courts of first instance and appeal granted the request for disclosure. The company lodged an appeal in cassation before the Portuguese Supreme Court, which referred several questions to the CJEU concerning, in essence:
  
  1. whether Article 5(1) of the Directive applies to pre‑action requests for access to evidence;
  2. the standard for establishing the “plausibility” of the damages action; and;
  3. the evidentiary value of a Commission decision finding a vertical restriction by object, particularly when adopted under a settlement procedure.

2. Judgment of the Court of Justice of the European Union

a. First preliminary question: scope of Article 5(1) of the Directive

The CJEU first analyses the scope of Article 5(1) of the Directive, which empowers national courts to order the disclosure of evidence “in proceedings relating to an action for damages”. The question was whether, where national law provides for a “prior action for access to evidence before a possible damages action is brought” –as is the case in Portugal and, with variations, in Spain–such a mechanism falls within the material scope of Article 5(1).

The Court adopts a broad and teleological interpretation of the expression “proceedings relating to an action for damages”, concluding that Article 5(1) is not limited to proceedings in which a damages claim has already been filed. It may also apply to autonomous, preliminary actions for access to evidence, provided they are aimed at preparing a future damages claim.

In this regard, the Court stresses that excluding such prior actions from the scope of the Directive would deprive the disclosure mechanism of practical effectiveness, as it would force a claimant to file a damages action without the minimum information needed to substantiate it (paras. 43–44).

However, the CJEU emphasises that including these preliminary actions within the scope of Article 5(1) does not entail recognising an unlimited right of access to information (paras. 46–47). Even when the request is autonomous and made prior to any damages action, the national court must rigorously verify compliance with the substantive requirements laid down in Article 5(2) and (3), including: (i) that the request is sufficiently specific and clearly circumscribed; (ii) that it is necessary and proportionate for the purpose of preparing a damages action; and (iii) that it does not amount to an exploratory request or a fishing expedition.

It is therefore for the national judge to play an active supervisory role, balancing the competing interests (in particular, the claimant’s right of access to evidence and the protection of the rights and burdens of the party from whom disclosure is sought) and ensuring that the pre‑trial disclosure mechanism remains strictly instrumental, without anticipating or prejudging the substantive issues of the prospective damages litigation.

b. Third preliminary question: what value should be given to the existence of an EC decision declaring the existence of a competition infringement for the purposes of proving the plausibility of an action for damages as a requirement for access to sources of evidence? Partial, and depends on the case

As is well known, Article 5(1) of the Directive makes the granting of access to the requested evidence conditional upon the claimant providing a reasoned justification containing the facts and evidence reasonably available to it, which are sufficient to establish the “plausibility of its claim for damages”.

In this regard, the CJEU decides to address the third question before the second and examines whether the existence of a European Commission decision finding a vertical restriction by object (as described above) is sufficient to establish such “plausibility” of the damages action, and whether the answer may vary where the decision was adopted in the context of a settlement procedure with the undertaking.

In relation to that issue:

1. First, the CJEU recalls that any person has the right to claim compensation for harm suffered where there is a causal link between that harm and an infringement of EU competition law. Thus, harm is only one of the necessary elements for bringing an action for damages, the other two being the existence of an infringement and the existence of a causal link between that infringement and the harm.
2. In this regard, the CJEU recalls, on the basis of Article 16(1) of Regulation 1/2003, that a decision of the Commission is binding on the national court as regards the existence of the infringement, even if it is not final. However, this binding effect does not automatically extend to the damage or the causal link, which remain elements to be assessed by the national court.
3. Applying these principles to the mechanism of access to evidence under Article 5(1), the CJEU explains that a Commission decision finding an infringement of competition law enables the national court to consider the existence of the infringement (and, “a fortiori, its plausibility”) as established. However, such a decision is not, in itself, sufficient in every case to support the plausibility of a claim for damages. It remains necessary for the applicant to demonstrate the plausibility of the harm and of the causal link.
4. In relation specifically to the existence of harm, the Court draws a distinction between: (i) cartels (horizontal restrictions under Article 101 TFEU), for which Article 17(2) of the Directive establishes a rebuttable presumption of harm; and (ii) vertical restrictions, even where characterised as restrictions by object, for which no such presumption applies.
5. Accordingly, the CJEU concludes that the presumption of harm in Article 17(2) does not apply to vertical restrictions of competition involving non‑competing undertakings operating at different levels of the supply or distribution chain. Consequently, the Commission decision relevant to the present case does not, in itself, allow the national court to consider the plausibility of the harm resulting from the infringement as established for the purposes of granting the requested access to evidence.
6. Nevertheless, the Court notes that the Commission decision may, of course, contain relevant indicia –such as the definition of the affected market, the duration of the conduct, or the categories of potentially harmed consumers– which, combined with other information reasonably available to the applicant, may help support the plausibility of the alleged harm. This is a matter to be assessed by the national court.
7. Finally, the CJEU stresses that the conclusion is not affected by the fact that the decision was adopted in a settlement procedure, since this circumstance does not diminish its binding effect.

c. Second preliminary question: the standard of “plausibility” of the damages action as a requirement for access to evidence. What does “plausible” mean?

Lastly, the Court addresses a question of great practical significance for access to evidence  –one on which the Spanish courts have already had the opportunity to rule over recent years, in the context of applying Article 283 bis of the Spanish Civil Procedure Act– namely, what it means for the applicant seeking access to evidence to be required to demonstrate the “plausibility” of the damages action, and what evidentiary standard applies with respect to each of the three cumulative elements needed to bring a subsequent damages action for an infringement of competition law.

In this regard, Article 5(1) of the Directive conditions access to evidence on the applicant presenting a “reasoned justification containing reasonably available facts and evidence sufficient to support the plausibility of its claim for damages”. 

On this point:

1. The CJEU rejects the notion that, at this preliminary stage, the applicant must prove that it is “more likely than not” that the conditions for liability for an infringement of competition law (infringement, harm and causation) are met –i.e.that the applicant must satisfy a balance of probabilities test–. In the Court’s view, such a requirement would, in practice, amount to anticipating the assessment of the merits and would deprive the disclosure mechanism of its very purpose.

   In particular, the Court stresses that imposing a probability test would oblige the applicant to demonstrate the existence of harm and of the causal link at a moment when it does not yet have access to the information –often exclusively in the hands of the alleged infringer– needed to substantiate those elements. This would be incompatible with Article 5(1) of the Directive and with the principle of effectiveness of EU law.

2. Consequently, the Court establishes that the applicable standard must be more flexible. It is sufficient for the applicant to convince the national court that the hypothesis of the infringement, the harm, and the causal link is “reasonably acceptable”.

   That is, in line with the criteria already applied by Spanish courts (see, inter alia, Order of the Commercial Court No. 5 of Madrid of 13 December 2021), the CJEU establishes that the national court must verify whether, on a prima facie basis and on the basis of the information available at a preliminary stage, the applicant has put forward a plausible –or “sufficiently acceptable”– hypothesis regarding the three cumulative conditions for liability to arise.

   Thus, as clearly and anticipatorily established in the order of the Provincial Court of Murcia of 23 September 2021, summarising the doctrine of various provincial courts, it is a question of “the claimant having demonstrated the plausibility’ of their action by means of sufficient ‘prima facie evidence”.

In short, the CJEU confirms that the “plausibility” requirement in Article 5(1) of the Directive does not amount to an anticipatory assessment of liability, but rather to a preliminary plausibility check aimed at excluding abusive or purely exploratory requests, without preventing access to evidence where the applicant has put forward a reasonable hypothesis of infringement, harm and causation on the basis of the information available to it. It is therefore for the national judge, at this early stage, to assess the nature of the request for access to evidence, avoiding both refusals based on excessively demanding evidentiary requirements and the automatic granting of disclosure, which would deprive the plausibility, necessity and proportionality limits laid down in the Directive of their substance.