On 12 June 2025, Advocate General Szpunar delivered his opinion in Case C-286/24 (Meliá Hotels International), in which the Portuguese Supreme Court asked clarification regarding the threshold for a consumer association to obtain access to evidence prior to the introduction of an action for damages under competition law.

This opinion fits into the broader context of consumer associations’ access to justice in the EU. This case concerns the interpretation of the Damages Directive (Directive 2014/104). Unlike the Representative Actions Directive (Directive 2020/1828), which facilitates access to justice of consumer organisations in consumer law matters, the Damages Directive does not in itself provide for collective redress mechanisms. Instead, it leaves questions of standing and procedural mechanisms to national law. In this case however, the action is brought by a Portuguese consumer association. The forthcoming decision of the CJEU will therefore impact access to evidence of consumer associations in competition damages claims.

The dispute pending before the Portuguese courts arose following the introduction of a special action by the Portuguese consumer association, Ius Omnibus, to request the disclosure of evidence held by Meliá, said to be necessary to show harm to Portuguese consumers caused by Meliá’s anticompetitive conducts. Meliá’s violation of EU competition law through restrictions of active and passive sales of accommodation in Meliá’s hotels was sanctioned by the European Commission by decision of 21 February 2020. Ius Omnibus’ action for access to evidence was introduced before the introduction of an action for damages on the merits. Under Article 5(1) of the Damages Directive, national courts must be able to order the disclosure of evidence where the claimant has shown that its claim for damages was sufficiently plausible. The questions referred by the Supreme Court of Portugal relate to the interpretation of that provision.

In his opinion of 12 June 2025, Advocate General Szpunar first confirms that, in his view, requests for disclosure of documents fall within the scope of the Damages Directive even where the request for access to evidence is brought before the introduction of an action for damages on the merits, provided that the action for access to evidence is brought in accordance with national law. The Advocate General then moves on to interpreting the requirement, under Article 5(1) of the Damages Directive, that the claim for damages must be plausible to order the disclosure of evidence.

First, Advocate General Szpunar takes the view that the existence of a decision of a competition authority (in this case a decision of the European Commission) finding an infringement of competition law cannot constitute the exclusive basis to conclude to the plausibility of the claim for damages. While such an infringement decision requires the national court to accept the existence of an infringement, national courts must take into account other factual circumstances pointing towards the existence of a damage and a causal link between the damage and the infringement, including the seriousness of the infringement. This is true even though the decision is a vertical restriction by object as, unlike what is the case for cartels, there is no presumption of harm for these types of practices under EU law or under Portuguese law.

Second, the Advocate General considers that while Article 5(1) of the Damages Directive requires the claimant to bring evidence supporting the plausibility of its claim for damages in order to obtain the disclosure of evidence, this does not require showing that harm to consumers is more likely than not. The Advocate General makes clear that Member States cannot impose stricter requirements than the Damages Directive with respect to access to evidence. He considers that it must be “reasonably acceptable” that the conditions for liability for a competition law infringement have been met. Moreover, the standard of proof required to show that the claim for damages is plausible cannot be too complex or costly. The claimant should in that sense be able to satisfy the required degree of plausibility to obtain access to evidence on the basis of available facts and evidence, even if information is partial of incomplete.

The opinion of Advocate General seems to point towards establishing a low threshold for the plausibility test required in the context of access to evidence requests in competition damages claims. If the CJEU follows the AG’s opinion, this should help facilitate the work of consumer associations in competition damages claims, which will at the preliminary stage only have to show plausible harm to consumers in order to substantiate their access to evidence requests. This reasoning does however not apply to the next phase of the procedure on the merits where the individual harm must be effectively proven and quantified. The decision of the CJEU could also impact other sectors, such as, for instance, future cases concerning the imposition of fines by the European Commission under the Digital Markets Act (Regulation 2022/1925). The latter is included in Annex I of the Representative Actions Directive, which allows, in its Article 18, for disclosure of evidence to qualified entities representing consumers.

Charlotte de Meeûs
Research Unit International and European law
KU Leuven