CJEU Sets The Bar Low For Evidence Disclosure In Competition Damages Litigation

What You Need to Know

• Key takeaway #1
  A procedure for evidence disclosure that is brought prior to a damages action is protected by the EU Damages Directive. As a result, claimants in jurisdictions that provide for such pre-action disclosure procedures should consider using this possibility strategically, in order to build up their evidentiary file before they commit to full damages proceedings.
• Key takeaway #2
  The appropriate question for national courts to ask in disclosure proceedings is whether the claimant’s request is made on a "reasonably acceptable" assumption that the infringement, harm, and causal link are present. It is not necessary for the claimant to show that their assumption is in fact more likely than not to be correct.