In a significant ruling for the enforcement of EU competition law, delivered on 29 January 2026 (C-286/24), the European Court of Justice (“ECJ”) clarified the rules governing access to evidence in the pre-litigation phase and the plausibility standards under Directive 2014/104 (the “Damages Directive”).
Facts of the case
The dispute arose from a 2020 Commission decision finding that Meliá Hotels International (“Meliá”) had imposed vertical restrictions discriminating between consumers based on nationality or residence. The consumer association Ius Omnibusintended to bring a collective damages claim under the Damages Directive. For that purpose, it previously sought access to documents held by Meliá in order to evaluate the scope and effects of the anticompetitive practices identified by the Commission and to quantify the harm suffered by Portuguese consumers. Portuguese law allows for such prior actions, which must be brought in the form of a special declaratory action.
Meliá challenged the scope of Article 5(1) of the Damages Directive, which governs the disclosure of evidence in damages proceedings. The dispute ultimately reached the Portuguese Supreme Court, which referred three questions to the ECJ.
In essence, the questions concern whether claimants may request disclosure of evidence prior to initiating a damages action and the level of factual substantiation required to support such a request.
Findings of the ECJ
Applicability of Article 5(1) of the Damages Directive to prior actions
The Court held, first, that Article 5(1) of the Damages Directive is applicable to requests for disclosure of means of evidence made prior to the filing of an action for damages, where national law provides for such a procedural mechanism, although the Directive does not expressly provide for such possibility.
The Court reasoned that restricting the application of Article 5 of the Damages Directive to actions already brought on the merits would undermine the Directive’s objective of remedying information asymmetry and ensuring effective exercise of the right to compensation for claimants.
However, the Court recalled that national courts remain bound to apply the proportionality safeguards laid down in the Directive, therefore excluding so-called “fishing expeditions”. According to the Court, broad or undifferentiated requests for evidence are likely to be rejected on proportionality grounds.
Commission’s decisions do not automatically establish the plausibility of harm
Pursuant to Article 5(1) of the Damages Directive, the person injured by an infringement of competition law must put forward, in support of his or her request for the disclosure of evidence, a reasoned justification containing reasonably available facts and evidence sufficient to establish the plausibility of his or her claim for damages.
The Court recalled that the right to claim compensation for harm requires that the claimant demonstrates the plausibility of the existence of an infringement, of harm and of a causal link between that infringement and that harm.
In this context, second, the Court ruled that a Commission decision finding a vertical restriction by object, as in the present case, is not sufficient to establish the plausibility of a damages claim. Although national courts cannot contradict the Commission’s finding of an infringement, such a decision does not, by itself, establish the plausibility of harm and of the causal link, which claimants must still substantiate.
The ECJ therefore drew a sharp distinction between infringement and harm. The Directive’s presumption of harm, established under Article 17(2) of the Damages Directive, applies only to cartels, not to vertical restrictions. The Court also considered that the fact that Meliá’s decision arose from a settlement procedure was deemed irrelevant to this assessment.
The plausibility standard: “reasonably acceptable”
Third, the Court clarified the plausibility standard, outlined in Article 5(1) of the Damages Directive, and de facto specified the level of proof required to obtain disclosure of evidence.
In a nutshell, claimants do not need to show that liability is “more likely than not”. Instead, it is enough that the plausibility of infringement, harm, and causal link is “reasonably acceptable” based on available evidence.
According to the Court, this standard, which is lower than the one applicable at the merits phase, reflects the asymmetric information typical in competition cases and prevents undue obstacles to private enforcement.
Conclusion – Practical implications for future litigation
This judgment significantly enhances claimants’ ability to obtain early access to evidence, a development of particular importance for consumer organisations preparing collective redress actions and a strategic tool in damages litigation. By adopting a low plausibility threshold —requiring only a “reasonably acceptable” plausibility of infringement, harm, and causal link between the two — the Court reinforces the effectiveness of private enforcement and supports the Damages Directive’s objective of ensuring practical access to compensation.
At the same time, divergent applications across Member States are likely to persist, especially in jurisdictions such as Belgium, where prior disclosure mechanisms are not explicitly regulated. Moreover, the manner in which national courts will interpret the “reasonably acceptable” plausibility threshold remains uncertain, and the flexibility afforded by the Court’s approach may incentivise forum shopping in systems that allow such prior actions.