ECJ Guidance on Pre-Action Disclosure in Competition Damages Claims

On 29 January 2026, the European Court of Justice (the ‘ECJ’) issued a preliminary ruling in Meliá Hotels International, S.A. v Associação Ius Omnibus (Case C‑286/24) on the application of the Damages Directive to an action for pre-action disclosure.

Background

On 21 February 2020, the European Commission (the ‘Commission’) adopted a decision finding that, between 1 January 2014 and 31 December 2015, Meliá Hotels International, S.A (‘Meliá’) infringed Article 101 TFEU by concluding vertical contracts with tour operators that differentiated between consumers on the basis of their nationality or country of residence.

In July 2021, Associação Ius Omnibus (‘Ius’) brought an action before the Portuguese Competition, Regulation and Supervision Tribunal (Tribunal da Concorrência, Regulação e Supervisão) seeking disclosure of documents held by Meliá to allow it to determine whether Meliá’s conduct had harmed consumers in Portugal. Depending on the disclosure obtained, Ius intends to bring a potential collective action for damages (actio popularis) on behalf of injured consumers residing in Portugal.

Ius’ application was granted at first instance and on appeal. Meliá then brought an exceptional appeal before the Supreme Court of Portugal (Supremo Tribunal de Justiça), which sought a preliminary ruling from the ECJ on three questions concerning the application of the Damages Directive to pre-action applications for disclosure of evidence in aid of potential damages claims.

Application of Article 5(1) of the Damages Directive to pre-action disclosure

Relevant to the matters before the ECJ, Article 5(1) provides that:

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….

The ECJ observed that the legislation transposing the Damages Directive into Portuguese law expressly provides for the possibility of requesting the disclosure of evidence before an action for damages (Article 13, Law No 23/2018). Accordingly, the ECJ found it was unnecessary to determine whether the Damages Directive requires Member States to provide for pre-action disclosure and instead addressed whether, where national law provides for such disclosure, a prior action for access to evidence falls within the scope of Article 5(1) of the Damages Directive.

The ECJ held that Article 5(1) of the Damages Directive does apply to pre‑action disclosure where such a mechanism exists under national law. The Court observed that the Damages Directive seeks to complement public enforcement by facilitating private damages actions and to remedy the information asymmetry that typically disadvantages injured parties. An interpretation limiting Article 5(1) to actions for damages, to the exclusion of pre-action disclosure applications, would run counter to those objectives. Finally, the Court said that bringing pre-action disclosure procedures within Article 5(1) would also ensure such procedures are subject to the Damages Directive’s safeguards on proportionality and specificity, which protect the legitimate interests of all the parties and third parties concerned and prevent “fishing expeditions”.

Plausibility of harm under Article 5(1) of the Damages Directive

Article 5(1) of the Damages Directive makes the obtaining of disclosure dependent on the claimant submitting a reasoned justification containing reasonably available facts and evidence sufficient to support the ‘plausibility of its claim for damages’. The ECJ considered whether a Commission infringement decision finding a vertical restriction by object is sufficient to establish plausibility, and whether the answer to that question is affected by the fact that the decision was adopted at the end of a settlement procedure.

The Court held that the answer to both questions is no. In respect of the first question, the ECJ drew a distinction between cartels and vertical restrictions. While an EC decision finding a cartel raises a rebuttable presumption of plausibility (by virtue of Article 17(2) of the Damages Directive), a finding of a vertical restriction does not, even where the vertical restriction is a ‘by object’ restriction. The Court further confirmed that it makes no difference if the Commission’s decision was adopted under the settlement procedure, given it nevertheless constitutes a binding finding of infringement.

The standard of proof for establishing ‘plausibility’ of harm

Finally, the ECJ held that, in order to demonstrate the plausibility of a claim for damages under Article 5(1) of the Damages Directive, it is not necessary to prove that it is “more likely than not” that the conditions for liability for an infringement of competition law are met.

The Court held that Article 5(1) requires the claimant to provide a reasoned justification, based on reasonably available facts and evidence, that makes it reasonably acceptable for the court to assume that the three conditions for liability are met (namely: an infringement, harm and a causal link between the two). The Court emphasised that a finding of plausibility under Article 5(1) does not involve a decision on the merits but rather justifies an order for disclosure. As such, the evidential threshold at the disclosure stage must be lower than that required to establish liability.

Conclusion

The ECJ adopted an interpretation of Article 5(1) of the Damages Directive that aligns with the approach taken by Ius in its 2021 petition and confirms that the evidential threshold at the pre-action disclosure stage remains distinct from, and lower than, the standard required to establish liability on the merits, while still requiring a substantiated and reasoned justification.

More broadly, the preliminary ruling provides important clarification on the application of Article 5(1) to pre-action disclosure mechanisms, where these exist under national law, reinforcing their role as a key procedural tool in overcoming information asymmetry in competition damages litigation. By confirming that such mechanisms fall within the scope of the Damages Directive and are subject to its safeguards, the Court strengthens the effectiveness of private enforcement and facilitates access to evidence necessary to assess and pursue damages claims. This is likely to encourage greater use of pre-action disclosure proceedings in Portugal and other Member States with similar procedural frameworks.