Request for a CJEU preliminary ruling regarding the evidence disclosure under the EU Damages Directive

In the proceedings before Czech courts, a privately-owned transportation company RegioJet a.s. sued the state-owned railway company České dráhy, a.s. for damages allegedly caused by abuse of dominant position. In its application, RegioJet seeks the disclosure for the purpose of proceedings conducted before the Prague Municipal Court, as the court of first instance, of (i) documents with respect to which it maintains that they are under the defendant’s control, and (ii) documents that are under the control of the Ministry of Transport of the Czech Republic.

On 25 January 2012, the Office for the Protection of Competition (“Office”) commenced administrative proceedings with České dráhy concerning a potential abuse of its dominant position. These proceedings were suspended on 14 November 2016 because, on 10 November 2016, the European Commission initiated proceedings pursuant to Article 2(1) of Commission Regulation (EC) No 773/2004 in the similar matter (AT.40156 – Czech Rail).

The court of first instance ordered the defendant to disclose a set of documents featuring not only the information explicitly drawn up by the defendant for the purpose of proceedings before the Office, but also information mandatorily created and kept outside of the proceedings. The court also imposed on the Ministry of Transport the obligation to present additional statistical information and data.

In its letter of 26 February 2018, the European Commission emphasised that the court should, in its decision-making, apply primarily the principle of proportionality to the disclosure of evidence and take measures to protect such information. The Commission recommended suspending the main proceedings concerning damages. On 19 December 2018, the court of first instance ruled that the main proceedings concerning damages were to be suspended until the conclusion of the competition proceedings conducted by the Commission. The Prague High Court, as the court of appeal, confirmed the decision of the court of first instance regarding disclosure of information and took measures such that the evidence would be placed in custody with the court. The defendant challenged the decision of the court of appeal by an extraordinary appeal on a point of law to the Czech Supreme Court.

The Supreme Court then arrived at a conclusion that, in order to decide on the matter, it has to answer the following questions: (i) whether a court may render decisions while the proceedings are stayed, (ii) whether a court can impose on the defendant the obligation to disclose confidential information pursuant to the Act No. 262/2017 on compensation of competition damages (“Act”) before the conclusion of administrative proceedings, (iii) whether the Act contravenes the Directive 2014/104/EU (“Directive”) in terms of the scope of the category of information specified therein; and (iv) whether national courts proceeded correctly when they ordered the disclosure of certain evidence, taking measures for its protection.

In evaluating these questions, the following preliminary questions concerning its interpretation were presented to the CJEU:

1. Is an approach whereby a court decides to impose the obligation to disclose evidence, even though proceedings are at the same time being conducted by the Commission, due to which proceedings concerning an action for damages caused by a breach of competition legislation have been suspended on that ground by a court, consistent with the interpretation of Article 5(1) of Directive?
   
   
2. Does the interpretation of Article 6 (5) (a) and Article 6 (9) of the Directive preclude national legislation that restricts the disclosure of all information submitted in the course of proceedings at the request of a competition authority, even if the information concerned is such that a party is obliged to create and keep it on the basis of other legislation, regardless of the proceedings concerning a breach of the competition legislation?
   
   
3. Can the closure of proceedings “otherwise”, within the meaning of Article 6 (5) of the Directive, consist of the fact that a national competition authority suspended its proceedings as soon as the European Commission commenced proceedings for the purposes of adopting a decision pursuant to Chapter III of the Regulation EC 1/2003?
   
   
4. Having regard to the purpose and goals of the Directive, is an approach by a national court whereby it analogously applies national legislation implementing Article 6 (7) of the Directive to a category of information such as information pursuant to Article 6 (5) of the Directive, that is to say, it decides to order the disclosure of evidence with the proviso that the question whether the evidence contains information that was prepared by a natural or legal person specifically for the proceedings of a competition authority (within the meaning of Article 6 (5) of the Directive) is to be examined only after the evidence is disclosed to the court, compliant with Article 5 (1) of the Directive in conjunction with Article 6 (5) thereof?
   
   
5. If the reply to the previous question is in the affirmative, must Article 5 (4) of the Directive be interpreted such that effective measures for the protection of confidential information adopted by a court may, before a final evaluation by the court as to whether the evidence disclosed falls into the category of evidence under Article 6 (5) (a) of the Directive, exclude access to the disclosed evidence by the applicant or other parties to the proceedings and their representatives?

This case is certainly one to be watched by competition law enthusiasts as it promises to result in one of the first guidance of the CJEU on the EU Damages Directive and, more specifically, the topic of evidence disclosure. 

For more information contact Vojtěch Chloupek and Jiří Švejda.