OPINION OF ADVOCATE GENERAL
SZPUNAR
delivered on 5 May 2022 (1)
Case C‑57/21
RegioJet a. s.
joined party:
České dráhy a.s.,
Česká republika, Ministerstvo dopravy
(Request for a preliminary ruling from the Nejvyšší soud (Supreme Court, Czech Republic))
(Reference for a preliminary ruling – Anticompetitive practices – Abuse of dominant position – Actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union – Request for the disclosure of evidence for the purposes of an action for damages – Proceedings pending before the European Commission – Stay of the national proceedings relating to that action)
I. Introduction
1. Recognising that there is an information asymmetry in private competition law enforcement proceedings, the EU legislature, by Directive 2014/104/EU, (2) harmonised the rules on the disclosure of evidence requested for the purposes of actions for damages.
2. Article 5 of that directive lays down the rules which together form a general regime in that area. In conjunction with that provision, Article 6 of that directive sets out the specific rules relating to the disclosure of evidence in the files of the authorities responsible for the public enforcement of competition rules.
3. While the interpretation of the rules set out in Article 5 of Directive 2014/104 has already been the subject of a request for a preliminary ruling, (3) this is however the first time that the Court has been asked to rule on the interpretation of those set out in Article 6 of that directive.
4. The questions referred for a preliminary ruling by the national court fall within the broader context of proceedings relating to an action for compensation for alleged damage suffered by RegioJet as a result of the conduct of České dráhy a.s. affecting the rail market contrary to competition rules. In that context, although the first question referred for a preliminary ruling relates to the interpretation of Article 5(1) of Directive 2014/104, it concerns, in essence, the issue of the interrelationship between the private enforcement of competition law and its public enforcement. The four subsequent questions referred by the national court relate specifically to Article 6 of that directive.
II. Legal context
A. European Union law
5. Article 5(1) and (8) of Directive 2014/104 provides:
‘1. 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, subject to the conditions set out in this Chapter. Member States shall ensure that national courts are able, upon request of the defendant, to order the claimant or a third party to disclose relevant evidence.
…
8. Without prejudice to paragraphs 4 and 7 and to Article 6, this Article shall not prevent Member States from maintaining or introducing rules which would lead to wider disclosure of evidence.’
6. Article 6(5)(a) and (9) of that directive provides:
‘5. National courts may order the disclosure of the following categories of evidence only after a competition authority, by adopting a decision or otherwise, has closed its proceedings:
(a) information that was prepared by a natural or legal person specifically for the proceedings of a competition authority;
…
9. The disclosure of evidence in the file of a competition authority that does not fall into any of the categories listed in this Article may be ordered in actions for damages at any time, without prejudice to this Article.’
B. Czech law
1. Zákon č. 143/2001
7. Zákon č. 143/2001 Sb. o ochraně hospodářské soutěže (Law on the protection of competition) of 4 April 2001, in the version applicable to the facts of the dispute in the main proceedings (‘Law No 143/2001’), states, in Article 1(1) thereof, that it ‘shall organise the protection of competition on the market for products and services … against any practice which prevents, restricts, distorts or threatens competition’.
8. Article 21ca(2) of Law No 143/2001 provides, in essence, that documents and information which are prepared and filed for the purposes of administrative proceedings pending before the national competition authority may be disclosed to the public authorities only after the closure of the investigation or after the final decision of the national competition authority on the closure of the administrative proceedings.
2. Zákon č. 262/2017
9. Zákon č. 262/2017 Sb., o náhradě škody v oblasti hospodářské soutěže (Law No 262/2017 on damages in the area of competition) of 20 July 2017 transposes Directive 2014/104 into Czech law.
10. Article 2(2)(c) of that law provides that confidential information protected by an obligation of confidentiality includes, inter alia, supporting documents and information which have been provided specifically for the purposes of the administrative proceedings before the national competition authority.
11. Article 15(4) of that law provides that the obligation to disclose confidential information referred to in Article 2(2)(c) of that law may be imposed, at the earliest, only after the competition authority’s decision on the closure of the administrative proceedings has become final.
12. Article 16(1)(c) of that law provides, in essence, that, in the event of a request for access to documents containing confidential information contained in the file of the national competition authority, the President of the Chamber is to examine whether their disclosure would compromise the effective application of the competition rules. Under Article 16(3), documents containing confidential information may be disclosed only after the closure of the investigation or after the final decision of the national competition authority on the closure of the administrative proceedings.
III. Facts and the main proceedings
13. On 25 January 2012, the Úřad pro ochranu hospodářské soutěže (Office for the protection of competition, ‘the Czech competition authority’) initiated administrative proceedings of its own motion concerning a possible abuse of a dominant position committed by České dráhy.
14. On 25 November 2015, (4) RegioJet brought an action for damages before the Městský soud v Praze (City Court, Prague, Czech Republic) seeking compensation for the damage suffered as a result of the alleged conduct by České dráhy that was contrary to the competition rules.
15. On 10 November 2016, the European Commission decided to initiate proceedings pursuant to Article 2(1) of Regulation (EC) No 773/2004 (5) in Case No AT.40156 – Czech Rail.
16. On 14 November 2016, the Czech competition authority stayed its administrative proceedings, taking the view that the Commission proceedings concerned, from a substantive point of view, the same conduct as it had been examining in the course of the administrative proceedings.
17. On 11 October 2017, RegioJet submitted a request to the national court for the disclosure of documents, pursuant to Article 10 et seq. and Article 18 of Law No 262/2017 of 20 July 2017, for the purposes of the action for damages. That request concerned, inter alia, the disclosure of documents which RegioJet assumed to be in the possession of České dráhy, namely, inter alia, itemised reports, reports concerning public railway transport and the accounts of that company’s commercial segment.
18. Relying on Article 21ca(2) of Law No 143/2001, the Czech competition authority stated that the requested documents available to it in the course of its administrative proceedings could not be disclosed until the substantive administrative proceedings concerned had been definitively closed. It in addition stated that the other documents requested fell within the category of documents constituting a comprehensive set of documents and refused to disclose them on the ground that that might diminish the effectiveness of the policy of prosecuting infringements of competition law.
19. In response to a question put by the court dealing with the request for the disclosure of evidence, the Commission stated, in a letter of 26 February 2018, that when deciding on the disclosure of evidence, the court should, in the interests of protecting the legitimate interests of all the parties to the proceedings and those of third parties, apply, inter alia, the principle of proportionality and adopt measures to protect such information. It recommended that the proceedings on the substance of the case in relation to the action for damages be stayed.
20. By order of 14 March 2018, the court of first instance ordered České dráhy to disclose, by transferring it to the file, a set of documents which contained, first, information specifically prepared by that company for the purposes of proceedings before the Czech competition authority and, secondly, information which was required to be created and kept outside the context of those proceedings, such as train line records, quarterly reports on public railway transport and the list of routes operated by České dráhy. However, that court dismissed RegioJet’s requests for, first, the disclosure of the accounts of České dráhy’s commercial segment, including the correspondence codes by line and train type, and, secondly, the disclosure of the minutes of České dráhy’s management board meetings for the months of September and October 2011.
21. On 19 December 2018, the court of first instance decided to stay the substantive proceedings on the action for damages until the closure of the proceedings concerning anticompetitive practices initiated on 10 November 2016 by the Commission against České dráhy. Under Article 27(1) of Law No 262/2017 of 20 July 2017, in proceedings concerning an action for damages, the court is bound by the decision of another court, the Czech competition authority and the Commission on the existence of a restriction of competition and the identity of the party responsible. Furthermore, the national procedural rules also oblige the court to stay civil proceedings for damages, given that a matter on which the court’s decision depends is being decided in other proceedings and the court is not entitled to give a ruling in those proceedings.
22. By order of 29 November 2019, the Vrchní soud v Praze (High Court, Prague, Czech Republic), as an appellate court, upheld the order of 14 March 2018 and, with a view to ensuring the protection of the evidence disclosed, adopted measures to place the evidence under sequestration and disclose it only to the parties, their representatives and experts; in each case, that would always be on the basis of a reasoned, written request and with the prior agreement of the judge hearing the case according to the distribution of work.
23. České dráhy brought an appeal on a point of law against that order before the Nejvyšší soud (Supreme Court, Czech Republic), which is the referring court.
IV. The request for a preliminary ruling and the proceedings before the Court of Justice
24. It was in those circumstances that the Nejvyšší soud (Supreme Court), by decision of 16 December 2020, received at the Court on 1 February 2021, decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(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 for the purposes of the adoption of a decision pursuant to Chapter III of [Regulation (EC) No 1/2003], [(6)] 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 2014/104]?
(2) Does the interpretation of Article 6(5)(a) and Article 6(9) of [Directive 2014/104] preclude national legislation that restricts the disclosure of all information submitted in the course of proceedings at the request of [the Czech competition authority], even if the information concerned is such that a party is obliged to create and keep (or creates and keeps) 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 [Directive 2014/104], consist of the fact that a national competition authority suspended its proceedings as soon as the … Commission commenced proceedings for the purposes of adopting a decision pursuant to Chapter III of [Regulation No 1/2003]?
(4) Having regard to the purpose and goals of [Directive 2014/104], is an approach by a national court whereby it analogously applies national legislation implementing Article 6(7) of [that directive] to a category of information such as information pursuant to Article 6(5) of [that 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 [that directive]) is to be examined only after the evidence is disclosed to the court, compliant with Article 5(1) of [that 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 [Directive 2014/104] 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, or any part thereof, falls into the category of evidence under Article 6(5)(a) of [that directive], exclude access to the disclosed evidence by the applicant or other parties to the proceedings and their representatives?’
25. Written observations were submitted by the parties to the main proceedings, the Greek and Italian Governments and the Commission. České dráhy and the Commission were represented at the hearing on 3 February 2022.
V. Analysis
26. In order to give a useful answer to the questions referred for a preliminary ruling (Section C), it is necessary, first, to examine whether they are admissible in view of the scope ratione temporis of the provisions of which an interpretation is sought by the referring court (Section A) and, secondly, to make a number of comments on the rules governing the disclosure of evidence in the file of a competition authority (Section B).
A. The applicability ratione temporis of Directive 2014/104
27. Although Directive 2014/104 does not draw a distinction, from a textual point of view, between substantive and procedural provisions, (7) the Court has already stated that that directive contains a special provision, namely Article 22 thereof, which explicitly states the conditions for the temporal application of its procedural and substantive provisions. (8)
28. The conditions for temporal application are different for those two categories of provision. In order to rule on the applicability of Directive 2014/104 in the main proceedings, it is therefore necessary to determine whether Articles 5 and 6 are procedural or substantive provisions.
29. In short, the substantive rules determine the existence and extent of the liability of persons involved in an infringement of competition law, while the procedural rules determine the course of proceedings. The latter do not lose their procedural character owing to the fact that their application in proceedings relating to an action for damages may have an effect on the determination of that liability at the end of those proceedings. (9) Following that logic, as I have already stated in my Opinion in PACCAR, (10) even though Articles 5 and 6 of Directive 2014/104 appear to confer rights on individuals, those rights can nonetheless be exercised only in proceedings before a national court and concern, in essence, procedural measures allowing that court to establish the facts relied upon by the parties to the proceedings. The conditions for the application of the national provisions transposing Articles 5 and 6 of that directive are therefore laid down in Article 22(2) thereof.
30. Under Article 22(2) of Directive 2014/104, Member States were to ensure that any national measures adopted in order to comply with the procedural provisions of that directive do not apply to actions for damages of which a national court was seised prior to 26 December 2014. Conversely, it is apparent from that provision that the Member States enjoyed a measure of discretion in deciding, when transposing that directive, whether the national rules intended to transpose the procedural provisions of that directive would apply to actions for damages brought after 26 December 2014 but before the date of transposition of that directive or those brought, at the latest, before the expiry of the period prescribed for its transposition, namely before 27 December 2016. (11)
31. In that regard, I would note, first, that the appeal on a point of law was brought against the decisions of the courts of first and second instance relating to RegioJet’s request for the disclosure of evidence of 11 October 2017, pursuant to the national provisions transposing Directive 2014/104 into Czech law.
32. Secondly, as is apparent from the observations of the interested parties, the action for damages for the purposes of which the request for disclosure of evidence was submitted was brought on 25 November 2015, that is to say, before the date of transposition of Directive 2014/104. However, it is apparent from Law No 262/2017 of 20 July 2017, that the Czech legislature decided that the national provisions transposing the procedural provisions of that directive apply, directly and unconditionally, also to actions brought before that date of transposition. (12)
33. It must therefore be held that Articles 5 and 6 of Directive 2014/104 are relevant to the main proceedings.
34. That finding is not called into question by the circumstance that the action for damages at issue appears to relate to practices which took place before the adoption of Directive 2014/104. Article 22(1) of that directive precludes only the retroactive application of national provisions which transpose its substantive provisions. However, Articles 5 and 6 of that directive are procedural in nature.
35. Nor is that finding called into question by the circumstance that the evidence for which disclosure was requested in that case is included in the file of the Czech competition authority, which initiated its proceedings on 25 January 2012. In defining the scope ratione temporis of the procedural provisions, Article 22(2) of Directive 2014/104 does not refer to the date on which proceedings were initiated by a competition authority, whose interests are protected under Article 6 of that directive, but to the date on which an action for damages is brought before a national court. In doing so, by focusing on the proceedings of the national court, that provision circumscribes the powers of that court with respect to the disclosure of evidence in the file of a competition authority.
36. There is therefore nothing to suggest that the interpretation of Articles 5 and 6 of Directive 2014/104 clearly has no bearing on the real situation or the subject matter of the dispute in the main proceedings. It follows that the questions referred for a preliminary ruling concerning the interpretation of those provisions are admissible.
B. The disclosure of evidence in the file of a competition authority
37. As I pointed out in the introduction to this Opinion, Article 5 of Directive 2014/104 lays down general rules on the disclosure of evidence, while Article 6 of that directive supplements that general regime with rules which specifically concern the disclosure of evidence in the file of a competition authority.
38. The latter provision draws a distinction between several categories of evidence, including:
– as regards, first, information that was prepared by a natural or legal person, specifically for the proceedings of a competition authority, information that the competition authority has drawn up and sent to the parties in the course of its proceedings and settlement submissions that have been withdrawn, Article 6(5) of Directive 2014/104 provides that national courts may order their disclosure only after a competition authority, by adopting a decision or otherwise, has closed its proceedings (that list of evidence will hereinafter be referred to as ‘the grey list’);
– as regards, secondly, leniency statements and settlement submissions for actions for damages, Article 6(6) of that directive provides that Member States are to ensure that national courts cannot at any time order their disclosure (that list of evidence will hereinafter be referred to as ‘the black list’), and;
– as regards, thirdly, evidence in the file of a competition authority that does not fall into any of the categories previously listed in that article, Article 6(9) provides that the disclosure of that evidence may be ordered in actions for damages at any time, without prejudice to that article (that list of evidence will hereinafter be referred to as ‘the white list’).
39. Moreover, as regards the disclosure of evidence falling into those categories, Directive 2014/104 provides for a mechanism for balancing the interests at stake – namely the interests of the victims of infringements, of those responsible for infringements, those of third parties and those of the public sector – when implementing the competition rules, under the strict supervision of the national courts, above all as regards the relevance of the evidence requested and the necessity and proportionality of the measures relating to its disclosure. (13) To that end, Article 5 of that directive sets out criteria relating to the exercise of that supervision, supplemented by those laid down in Article 6 thereof.
40. It is in the light of those comments that the questions referred for a preliminary ruling by the national court must be examined.
C. The questions referred for a preliminary ruling
1. The first question
41. By its first question, the referring court asks, in essence, whether Article 5(1) of Directive 2014/104 precludes a national court from ordering the disclosure of evidence for the purposes of proceedings relating to an action for damages concerning an infringement of competition law, even though proceedings concerning that infringement are pending before the Commission with a view to adopting a decision under Chapter III of Regulation No 1/2003, with the consequence that those national proceedings are stayed.
42. In order to answer that question, it is necessary, first of all, to clarify the position of EU law with regard to a national court staying proceedings pending before it on account of the initiation by the Commission of proceedings relating to an action for damages. Secondly, it is necessary to examine whether EU law precludes a national court, as a result of such a stay, from ordering the disclosure of evidence for the purposes of proceedings relating to an action for damages. (14)
(a) Stay of proceedings relating to an action for damages
43. Under Article 11(6) of Regulation No 1/2003, the initiation of proceedings by the Commission is to relieve the competition authorities of the Member States of their competence to apply Articles 101 and 102 TFEU in respect of the same infringements. However, in accordance with Article 16(1) of that regulation, a national court seised of an action for damages is not automatically relieved, as a result of the initiation of proceedings by the Commission, of its competence to apply Articles 101 and 102 TFEU and to rule on the infringements examined by that institution. Moreover, that court is not obliged to stay its proceedings.
44. Article 16(1) of Regulation No 1/2003 states that ‘when national courts rule on agreements, decisions or practices under [Article 101 or Article 102 TFEU] which are already the subject of a Commission decision, they cannot take decisions running counter to the decision adopted by the Commission. [In the absence of such a decision, the national courts] must also avoid giving decisions which would conflict with a decision contemplated by the Commission in proceedings it has initiated. To that effect, the national court may assess whether it is necessary to stay its proceedings’.
45. Directive 2014/104 does not require national courts to stay their proceedings either. It is clear from a reading of Article 6(5) and (9) of that directive that it supports the interpretation that proceedings relating to an action for damages may also continue when proceedings are pending before a competition authority. While the evidence on the grey list cannot be disclosed before a competition authority has closed its proceedings (Article 6(5) of that directive), the disclosure of evidence on the white list may be ordered ‘in actions for damages at any time’ (Article 6(9) of that directive).
46. From the point of view of EU law, it is therefore not mandatory to stay proceedings relating to an action for damages as a result of the initiation of proceedings by the Commission. It is true that, from the point of view of that law, and irrespective of whether or not a national court stays its proceedings, that court must ensure, inter alia, that it does not take a decision which would conflict with a decision contemplated by the Commission. However, and a fortiori, subject to the limitations of EU law, such as those resulting from the need to ensure the effectiveness of that law, provided for in Article 16(1) of Regulation No 1/2003, or from the principles of effectiveness and equivalence, the effects of such a stay are a matter for national law.
47. In that regard, the referring court states that, in the present case, the proceedings relating to the action for damages were stayed owing to the obligation that arose under national procedural law. However, the Court has not been asked whether such an ‘obligation’ is compatible with the rights which persons who have suffered harm caused by an infringement of competition law derive from EU law. Furthermore, it is not for the Court to rule on whether, subject to the limitations arising from EU law, a national court may, under its national procedural rules, take measures after staying its proceedings. The only question which arises in the present case is whether, as a result of such a stay, Directive 2014/104 precludes a national court from ordering the disclosure of evidence under the national provisions transposing Articles 5 and 6 of that directive.
(b) The order to disclose evidence
48. As I noted in another context, (15) Directive 2014/104 does not seem to define the procedural relationship which must, technically speaking, exist between a request for the disclosure of evidence and an action for damages (for example, a request for the disclosure of evidence as a measure in substantive proceedings, a request examined in interlocutory proceedings or even a request examined in separate proceedings). In the same context, I took the view that a request for the disclosure of evidence made before an action for damages is brought is also capable of falling within the scope of Articles 5 and 6 of that directive. (16) A fortiori, first of all, a stay of proceedings relating to an action for damages does not mean that the measures for the disclosure of evidence adopted for the purposes of those proceedings fall outside the scope of that directive. In any event, it appears unconvincing to argue that it would become applicable again after the proceedings have resumed. Secondly, at least from the point of view of that directive, a stay of proceedings relating to an action for damages does not automatically prevent the national court from ordering the disclosure of evidence for the purposes of those proceedings.
49. The same applies where such proceedings are stayed owing to the initiation of proceedings by the Commission – a stay which is not mandatory under EU law. (17) As is apparent from the considerations set out in point 45 of this Opinion, subject to the specific rules on evidence on the black and grey lists, Directive 2014/104 does not preclude, at least in principle, a national court from ordering the disclosure of evidence in the file of a competition authority before that authority has closed its proceedings.
50. In doing so, that national court must, however, comply with all the requirements arising from Directive 2014/104 and, in particular, limit the disclosure of evidence to that which is relevant, proportionate and necessary. As I noted in point 39 of this Opinion, those requirements constitute a central element of the mechanism intended to ensure the balancing of the interests at stake by the national courts, in particular those of the public sector when implementing the competition rules.
51. In that context, Article 6(4)(b) of Directive 2014/104 states that, when national courts assess the proportionality of an order to disclose information, they must, in addition, consider whether ‘the party requesting disclosure is doing so in relation to an action for damages before a national court’. From that I infer that, in the context of that examination of proportionality, carried out with due care, especially where it concerns evidence in the file of a competition authority, (18) a national court must also take into account the fact that the proceedings relating to the action for damages have been stayed.
52. The consideration that Directive 2014/104 does not, in principle, preclude a national court from ordering the disclosure of evidence for the purposes of proceedings relating to an action for damages which have been stayed as a result of the Commission’s initiating proceedings is not called into question by the obligation that ‘when national courts rule on agreements, decisions or practices under Article [101 or 102 TFEU] … [they cannot take] decisions which would conflict with a decision contemplated by the Commission in proceedings it has initiated’. (19)
53. According to the interpretation put forward by the Commission, the scope of Article 16(1) of Regulation No 1/2003 is limited to the application of Article 101 or 102 TFEU or, in other words, to a finding of an infringement of competition law by a national court. An order to disclose information, which is merely a procedural decision, does not fall within the scope of Article 16(1) of that regulation.
54. Without wishing to call into question the Commission’s interpretation and the conclusion it reaches, I am sympathetic to a more nuanced interpretation. Both the principle of sincere cooperation, laid down in Article 4(3) TEU, and also the objective of the effective and uniform application of EU competition law and the general principle of legal certainty, which are also reflected in Article 16(1) of Regulation No 1/2003, (20) require, in my view, that a national court take account of the proceedings pending before the Commission when adopting any decision or measure in the course of proceedings relating to an action for damages, especially where that decision or measure concerns, even if only to a limited extent, a finding of an infringement of competition law.
55. In that regard, I would point out that, in order for a national court to order the disclosure of evidence requested by a person who claims to be the victim of an infringement, the plausibility of the claim for damages or the purposes of which that disclosure is sought must be substantiated. (21)
56. The interest in avoiding conflicting decisions, resulting from the desire to ensure the coherent application of the competition rules and the general principle of legal certainty, is not, in principle, called into question where a national court orders the disclosure of evidence for the purposes of proceedings relating to an action for damages which have been stayed as a result of the initiation of proceedings by the Commission. (22)
57. It is clear from the judgments in Gasorba and Others (23) and Groupe Canal + v Commission (24) that where the Commission, on the one hand, ‘intends to adopt a decision requiring that an infringement be brought to an end’ and, on the other hand, adopts a decision under Article 9(1) of Regulation No 1/2003, which makes commitments binding on the undertakings concerned, the national courts may not adopt ‘negative’ decisions with regard to the practices concerned, finding that there has been no infringement of Articles 101 and 102 TFEU. The fact of ordering the disclosure of evidence, by considering that there is support for the plausibility of the claim for damages for the purposes of which that disclosure is sought, cannot be treated in the same way as a ‘negative’ decision in the light of the fact that the Commission continues its proceedings and seeks to determine whether there has been an infringement of Articles 101 and 102 TFEU.
58. Moreover, it is apparent from the judgment in Masterfoods and HB (25) that, where, ‘in order to avoid reaching a decision that runs counter to that of the Commission’, a national court stays its proceedings because the outcome of the dispute before it depends on the validity of the Commission’s decision on Article 101 or 102 TFEU, which is the subject of an action for annulment brought by the addressee of that decision, ‘it is incumbent on [that national court] to examine whether it is necessary to order interim measures in order to safeguard the interests of the parties pending final judgment’. A fortiori, in the absence of a Commission decision, the interest in avoiding conflicting decisions cannot prevent a national court which stays its proceedings, on account of the initiation of proceedings by that institution, from finding that the plausibility of the claim for damages has been substantiated and from ordering the disclosure of evidence.
59. Consequently, where a national court decides to order the disclosure of evidence for the purposes of proceedings relating to an action for damages which have been stayed as a result of the initiation of proceedings by the Commission, it does not, in principle, take a decision which may run counter to the decision contemplated by the Commission in those proceedings, within the meaning of Article 16(1) of Regulation No 1/2003.
60. In the light of the considerations set out in the preceding points, Article 5(1) of Directive 2014/104 must be interpreted as not precluding a national court from ordering the disclosure of evidence for the purposes of national proceedings relating to an action for damages concerning an infringement of competition law, even where proceedings concerning that infringement are pending before the Commission with a view to the adoption of a decision under Chapter III of Regulation No 1/2003, with the consequence that those national proceedings are stayed.
2. The third question
61. By its third question, which it is appropriate to examine before the second question, the referring court asks, in essence, whether the stay of its proceedings by a national competition authority, on the ground that the Commission has initiated proceedings under Chapter III of Regulation No 1/2003, may be regarded as the closure of those proceedings ‘by adopting a decision or otherwise’, within the meaning of Article 6(5) of Directive 2014/104.
62. As a reminder, under Article 6(5) of Directive 2014/104, national courts may order the disclosure of evidence on the grey list only after a competition authority, by adopting a decision or otherwise, has closed its proceedings. Recital 25 of that directive states that the closure of proceedings results from the adoption, for instance, of a decision under Article 5 of Regulation No 1/2003, (26) ‘with the exception of decisions on interim measures’.
63. Under the first paragraph of Article 5 of Regulation No 1/2003, a national competition authority may require that an infringement be brought to an end, order interim measures, accept commitments and impose fines, periodic penalty payments or any other penalty provided for in its national law. According to the second paragraph of Article 5, where on the basis of the information in their possession the national competition authorities consider that the conditions for prohibition are not met, they may decide that there are no grounds for action on their part. (27) Thus, without prejudice to interim measures and unlike those interim measures, the first and second paragraphs of Article 5 of that regulation refer to decisions adopted where a national competition authority considers that in the light of the information gathered in the course of its proceedings, it is possible or even necessary to rule on those proceedings and close them.
64. That said, the referring court appears to emphasise, as regards the adoption of a decision closing the proceedings, the alternative provided for in Article 6(5) of Directive 2014/104, namely the closure ‘otherwise’ of the proceedings.
65. In that regard, it should be noted that the initial proposal for a directive (28) provided, in one of its provisions, that the disclosure of evidence on the grey list could be ordered ‘only after a competition authority has closed its proceedings or taken a decision referred to in Article 5 of Regulation No 1/2003 or in Chapter III of Regulation No 1/2003’. (29)
66. The wording of that provision was discussed during the travaux préparatoires. In particular, it follows from the draft legislative resolution of the European Parliament (30) that that institution sought to amend that wording so that it reflects in more general terms the idea that disclosure of the evidence on the grey list may be ordered only after a competition authority has closed its proceedings ‘by any means’.
67. Ultimately, the wording of the provision in the initial proposal was reproduced in recital 25 of Directive 2014/104, with the specification that this constitutes an illustration (‘closed its proceedings, for instance by adopting a decision under Article 5 or under Chapter III of [Regulation No 1/2003]’). (31)
68. Even more importantly, the idea set out in the draft legislative resolution of the European Parliament appears to have inspired the wording of Article 6(5) of Directive 2014/104 (‘by adopting a decision or otherwise, has closed its proceedings’), without in reality changing the meaning of the Commission’s initial proposal (‘only after a competition authority has closed its proceedings or taken a decision …’). It was simply a matter of clarifying that decisions adopted under Article 5 of Regulation No 1/2003 also ‘close’ the proceedings of a national competition authority, within the meaning of Article 6(5) of that directive.
69. Accordingly, when Directive 2014/104 refers to closing the proceedings ‘by adopting a decision or otherwise’, the measures in question are those which, as regards their substance and purpose, are adopted when a national competition authority decides that, in the light of the information gathered in the course of the proceedings, it is possible or even necessary to adjudicate and conclude (‘close’) them. A stay of proceedings by a national competition authority cannot, therefore, be equated with a closure ‘otherwise’ of the proceedings by that authority.
70. The same applies to a stay of proceedings by a national competition authority as a result of the initiation of proceedings by the Commission.
71. It should be noted, as the Greek Government has done, that under Article 11(6) of Regulation No 1/2003, (32) the initiation of proceedings by the Commission does not permanently and definitively relieve the national competition authorities of their power to apply national competition law. That power is restored once the proceedings initiated by the Commission are concluded. (33) Moreover, under Article 16(2) of that regulation, the competition authorities of the Member States retain their power to act within the framework of both EU and national competition law, even if the Commission has itself already taken a decision, provided that they do not take decisions which would run counter to that adopted by the Commission. (34)
72. A teleological interpretation of Article 6(5) of Directive 2014/104 supports the interpretation proposed in point 69 of this Opinion.
73. The first sentence of recital 25 of Directive 2014/104 sets out the rationale for the temporal protection of evidence on the grey list: ‘An exemption should apply in respect of any disclosure that, if granted, would unduly interfere with an ongoing investigation by a competition authority concerning an infringement of Union or national competition law’.
74. In that regard, first, the Commission proceedings that led the Czech competition authority to stay its proceedings are still ongoing. It is therefore also the interests of that institution’s proceedings which, following the logic of Article 6(5) of Directive 2014/104, may be compromised by the disclosure of the evidence in the file of the Czech competition authority. The proceedings initiated by that authority relate to the same infringements as those examined by the Commission. Secondly, in view of the fact that that authority’s competence is theoretically capable of being restored, the interests of its proceedings still constitute a valid ground for conferring temporal protection on the evidence in the file of that authority.
75. Consequently, Article 6(5) of Directive 2014/104 must be interpreted as meaning that a stay of proceedings by a national competition authority on the ground that the Commission has initiated proceedings under Chapter III of Regulation No 1/2003 cannot be regarded as the closure by the national competition authority of its proceedings ‘by adopting a decision or otherwise’, within the meaning of that provision.
3. The second question
76. By its second question, the referring court asks, in essence, whether Article 5(8) and Article 6(5)(a) and (9) of Directive 2014/104 preclude national legislation which temporarily restricts, under Article 6(5) of that directive, the disclosure of all the information ‘submitted’ for the purposes of the proceedings initiated by the competition authority, and not only information that was ‘prepared’ specifically for that purpose.
77. While the second question referred for a preliminary ruling, as formulated, appears to relate solely to the interpretation of Article 6(5) and (9) of Directive 2014/104, that court seeks to ascertain, in the words of its request for a preliminary ruling, whether that directive precludes the adoption of national legislation that extends the range of information excluded from disclosure for the duration of proceedings before a competition authority. The discretion enjoyed by the Member States with regard to the transposition of Articles 5 and 6 of that directive is circumscribed by Article 5(8) thereof. In my view, it would therefore appear necessary to reformulate the second question referred for a preliminary ruling and extend its scope to the latter provision.
78. In addition, for the sake of clarity, it is true that the wording of the second question refers to ‘information … that a party is obliged to create and keep (or creates and keeps) … on the basis of other legislation, regardless of the proceedings concerning a breach of the competition legislation’. However, it is apparent from that wording (‘even if the information concerned’), read in the light of the present request for a preliminary ruling, (35) that that reference is merely an example of the evidence covered by that question.
79. Before analysing the second question as thus reformulated, it is appropriate to examine its admissibility since that is disputed by České dráhy.
(a) Admissibility of the second question referred for a preliminary ruling
80. České dráhy submits that this question is premature and hypothetical because, to date, the Czech national courts have not ruled on whether the documents which are the subject of the request for the disclosure of documents had been specifically prepared for the proceedings before the Czech competition authority or for the proceedings conducted by the Commission.
81. In that regard, it must be recalled that questions relating to EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it.
82. The Court’s answer to that question will depend on identifying the evidence which comes within the white list and which may, where appropriate, be disclosed notwithstanding the fact that the Czech competition authority has not closed its proceedings. It follows that the second question referred for a preliminary ruling is admissible.
(b) Substance
83. The referring court notes that under Article 6(5)(a) of Directive 2014/104 the grey list does not include all the information submitted for the proceedings of a competition authority, as presupposed by the wording of the Czech provisions transposing that directive, but only the information specifically prepared for those proceedings.
84. It is clear from the wording of Article 6(5)(a) of Directive 2014/104, read in the light of recital 25 thereof, (36) that the temporary protection granted under that provision does not concern all the information that has been expressly submitted, either spontaneously or at the request of the competition authority, for the purposes of proceedings initiated by that authority, but only information specifically prepared for such proceedings.
85. That result of the textual interpretation is confirmed by the considerations which follow from a systematic interpretation.
86. In the first place, first of all, Article 6(9) of Directive 2014/104, which concerns evidence on the white list, provides that the disclosure of evidence in the file of a competition authority that is not on the grey or black lists may be ordered in actions for damages at any time. Next, recital 28 of that directive, which clarifies the normative content of that provision, uses the terms ‘evidence that exists independently of the proceedings of a competition authority (“pre-existing information”)’ to refer to evidence other than that referred to in Article 6(5) and (6) of that directive. The evidence in question is therefore any evidence whose disclosure is not automatically prohibited by that directive by virtue of its inclusion on the grey or black lists in the interests of the public enforcement of competition law. Finally, Article 2(17) of that directive defines the concept of ‘pre-existing information’ as ‘evidence that exists irrespective of the proceedings of a competition authority, whether or not such information is in the file of a competition authority’. It follows from that definition, and above all from the last part thereof, that evidence in such a file is also capable of being included on the white list. (37) In particular, information that a party to the proceedings is obliged to create and keep (or creates and keeps) on the basis of other legislation, regardless of proceedings concerning a breach of competition law, constitutes a prime example of pre-existing information whose disclosure may, in principle, be ordered at any time by national courts.
87. In the second place, reflecting the idea that it is appropriate, first, to limit the protection afforded to the evidence on the grey and black lists to cases in which that protection is actually necessary and, accordingly, appropriate from the perspective of the objectives of Directive 2014/104, and, secondly, to allow reasonably broad access to evidence, Article 6(8) of that directive provides that if only some parts of the evidence requested are on the black list (‘are covered by paragraph 6’), the remaining parts must, depending on the category under which they fall, be released in accordance with the relevant paragraphs of Article 8 of that directive. (38)
88. Article 5(8) of Directive 2014/104 authorises Member States to adopt rules which would lead to wider disclosure of evidence, without prejudice to Article 5(4) and (7) and to Article 6 of that directive.
89. It follows that while Article 5 of Directive 2014/104 is in principle based on minimum harmonisation, Article 6 thereof must be harmonised exhaustively. Consequently, first, the Member States are not authorised, when transposing that directive, to qualify the conditions under which evidence is classified as being on the grey, black or white lists (‘without prejudice … to Article 6’). (39) Secondly, to use the wording of the referring court, to allow Member States to extend the range of information on the grey list would, in my view, lead to a more limited disclosure of evidence, contrary to the logic pursued by Article 5(8) of that directive.
90. Accordingly, Article 5(8) and Article 6(5)(a) and (9) of Directive 2014/104 must be interpreted as precluding national legislation which temporarily restricts, under Article 6(5) of that directive, not only the disclosure of information ‘prepared’ specifically for the proceedings initiated by the competition authority, but also all the information ‘submitted’ for that purpose.
91. For the sake of completeness, I must point out that, in applying domestic law which uses terms identical to those of a directive or different terms, national courts are bound to interpret it, so far as possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by the directive. (40)
4. The fourth question
(a) Reformulation of the question referred for a preliminary ruling
92. By its fourth question, which I propose to reformulate for the reasons set out in the preceding points, the referring court asks, in essence, whether Article 5(1) of Directive 2014/104, read in conjunction with Article 6(5)(a) thereof, must be interpreted as meaning that those provisions do not preclude a national court from ruling on the disclosure of evidence and ordering that evidence to be placed under sequestration, while postponing the examination of whether that evidence contains ‘information that was prepared by a natural or legal person specifically for the proceedings of a competition authority’, within the meaning of the latter provision, to a time when that court has access to that evidence.
93. While the wording of the fourth question refers to the application, by analogy, of the national provision transposing Article 6(7) of Directive 2014/104 to evidence which may be on the grey list, the referring court nevertheless states that, by that question, it seeks to ascertain, in essence, whether a court may order the disclosure of evidence governed by Article 5(1) of that directive in order to assess whether that 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)(a) of that directive.
94. Moreover, the legal issue raised by that question originates in the order of 29 November 2019. I must point out, in that regard, that the measures taken by that court do not correspond exactly to the mechanism provided for in Article 6(7) of Directive 2014/104. (41) That provision lays down a mechanism for prior review of the contents of the evidence which may fall within the black list. Under that provision, the claimant may present a reasoned request that a national court access such evidence for the sole purpose of ensuring that its contents require that it be considered as being on the black list. However, in the present case, the claimant presented no such request. In addition, the disclosure of evidence was ordered at the same time as the measures allowing a review of whether that evidence contains information on the grey list.
95. In those circumstances, in order to give a useful answer to the fourth question referred for a preliminary ruling, it is irrelevant whether, as regards evidence which may fall within the grey list, the application by analogy of Article 6(7) of Directive 2014/104 is permitted or not under that directive. It is necessary, however, to interpret that directive in order for the referring court to be able to determine whether the approach taken by the court of second instance is consistent with that directive. That question must therefore be reformulated in the manner described in point 92 of this Opinion.
96. In the light of that reformulation, it is necessary to reject České dráhy’s argument that the fourth question referred is hypothetical because the courts of first and second instance did not apply, even by analogy, the national provision transposing Article 6(7) of Directive 2014/104.
(b) Assessment
97. It must be observed, first and foremost, that the initial proposal for Directive 2014/104 did not provide for a prior review mechanism such as that provided for in Article 6(7) of that directive. That mechanism appears to have its origin in an amendment discussed in the European Parliament’s draft legislative resolution. However, unlike the solution adopted in that directive, that amendment appeared to seek to authorise national courts to have access to and analyse evidence in the file of a competition authority. That authorisation concerned not only evidence capable of being included on the black list, but also evidence capable of being included on the grey list. (42)
98. Accordingly, it is necessary to consider whether the absence of such an authorisation in Directive 2014/104 as regards evidence which may be included on the grey list automatically means that the approach adopted by the court of second instance is not consistent with EU law. In so doing, it is appropriate to take into account the type of harmonisation on which Article 6 of that directive is based and the powers which it confers on national courts as regards access to evidence in the file of a competition authority.
(1) Type of harmonisation
99. Article 6 of Directive 2014/104 is based on exhaustive harmonisation. (43) With regard to evidence which may be included on the grey list, the EU legislature has not provided for a prior review mechanism such as that provided for in Article 6(7) of that directive. I would nevertheless point out that, in the present case, it is not a case of the application by analogy and/or extension of that provision to such evidence.
100. It is therefore not sufficient, in order to establish whether exhaustive harmonisation precludes the approach taken by the court of second instance, to refer to the wording of Article 6 of Directive 2014/014. In my view, in order to outline the exhaustive harmonisation which the EU legislature sought to achieve by means of that provision, it is also necessary to take into account the context of that provision and the reasons which led the EU legislature to carry out the exhaustive harmonisation of the matters covered by that provision.
101. According to recital 21 of Directive 2014/104, ‘the effectiveness and consistency of the application of Articles 101 and 102 TFEU by the Commission and the national competition authorities require a common approach across the Union on the disclosure of evidence that is included in the file of a competition authority’ and ‘disclosure of evidence should not unduly detract from the effectiveness of the enforcement of competition law by a competition authority’. It follows that exhaustive harmonisation was carried out by the EU legislature mainly in the interests of the public enforcement of competition law.
102. Under Article 6(4)(c) of Directive 2014/104, ‘the need to safeguard the effectiveness of the public enforcement of competition law’ also constitutes one of the factors which must be taken into account by national courts when assessing the proportionality of an order to disclose evidence in the file of a competition authority. Accordingly, ensuring that the disclosure of evidence in such a file does not compromise the effectiveness of the competition authorities’ proceedings falls, as a shared task, within the responsibility of the legislatures and the national courts with jurisdiction in actions for damages.
103. Following that logic, while a national court must also take account of that need when ruling on the disclosure of evidence in the file of a competition authority, it cannot be ruled out that, despite that harmonisation, some aspects relating to the matters covered by that provision may be specified and/or qualified by a Member State. In my view, the approach adopted by the court of second instance in the present case relates to one of those aspects.
104. Moreover, by undertaking the exhaustive harmonisation of the matters covered by Article 6 of Directive 2014/104, the EU legislature did not disregard the interest of persons who claim to be the victims of infringements and the effectiveness of the private enforcement of competition law. That provision favours the reasonably extensive disclosure of evidence in the file of a competition authority which is not on the grey or black lists. (44) Thus, in so far as it promotes the disclosure of evidence on the white list, the approach followed by the court of second instance in the present case was consistent with that logic.
105. For the sake of clarity, it should be noted that Article 6(7) of Directive 2014/104 requires Member States to grant a procedural right to a ‘claimant’ who, where the exemption is relied on under Article 6(6) of that directive, may request that a national court access the evidence in order to ascertain whether its contents fall outside the black list. (45) However, the approach adopted by the court of second instance in the present case is not based on the existence of a right which individuals may systematically rely on in proceedings relating to actions for damages. The present case concerned a specific intervention by that court, having regard to the circumstances of the main proceedings and, most likely, with a view to ensuring access to evidence on the white list. I therefore share the Commission’s view that, under that directive, it is possible, in individual cases, to apply, in accordance with national law, an approach such as that followed by the court of second instance in the present case.
106. The other arguments of České dráhy and the Commission, which concern, in essence, the role played by national courts in the disclosure of evidence in the file of a competition authority, are not capable of calling that finding into question.
(2) The need to preserve the effectiveness of public competition law enforcement
107. It is true that the approach adopted in the present case by the court of second instance may be too burdensome, both for a national court and for the person from whom the disclosure of evidence is requested and therefore, as the case may be, for a defendant or a competition authority.
108. However, first, the range of evidence in the file of a competition authority whose disclosure may be requested from a party to the proceedings is circumscribed by an assessment of proportionality. As regards such evidence, that assessment must be carried out carefully, as stated in recital 23 of Directive 2014/104. As that recital also states, ‘disclosure requests should therefore not be deemed to be proportionate where they refer to the generic disclosure of documents in the file of a competition authority relating to a certain case, or the generic disclosure of documents submitted by a party in the context of a particular case’.
109. Secondly, as I stated in point 102 of this Opinion, when assessing proportionality, the national courts must take into account ‘the need to safeguard the effectiveness of the public enforcement of competition law’. Accordingly, legal academics consider that national courts must ensure that the disclosure of documents is not excessively burdensome for competition authorities. (46)
(3) The possibility of confirming the veracity of the assertion that the evidence requested is on the grey list
110. České dráhy submits that, in the absence of a prior review mechanism, such as that provided for in Article 6(7) of Directive 2014/104, it is impossible for a national court to check the veracity of assertions by a party to proceedings relating to an action for damages that the evidence requested is on the black list. However, in the view of České dráhy, the position is different as regards evidence which may fall within the grey list.
111. However, as regards the party which asserts that the evidence requested is on the black list, the structure of Article 6(7) of Directive 2014/104 suggests that the main role in that context is given to the competition authorities. That provision provides, in the first instance, that national courts may request assistance from the competent competition authority. It is only in the second instance that that provision refers to the fact that the authors of the evidence in question may also have the possibility to be heard. However, it follows from Article 6(7) of that directive that, even as regards the black list, it is a national court that has the last word. (47)
112. In that regard, the Commission states that, given that the disclosure of the evidence on the black list is permanently denied, the harm caused by any incorrect refusal to order the disclosure of such evidence is much more serious than that caused by a refusal to order the disclosure of evidence on the grey list. The ‘incorrect refusal’ to which the Commission refers, namely that of a national court, may also occur during the verification which that court carries out in the context of the review mechanism provided for in Article 6(7) of Directive 2014/104. Even more importantly, the main purpose of that mechanism is not to correct errors on the part of the national courts, but to limit the risk of a refusal and/or an unfounded opposition by the person from whom the evidence is requested. That interpretation is borne out by recital 27 of that directive, which states that that mechanism concerns access by national courts to the ‘documents in respect of which the exemption is invoked’.
113. It must therefore be held that even the evidence on the black list is not protected against a national court but against the claimant and third parties. The last word as regards its classification as ‘evidence on the black list’ is a matter for the national court. A fortiori, evidence whose disclosure is, in principle, less harmful to the public sector interest, namely evidence on the grey list, need not necessarily be protected more strictly against access by that national court.
114. In the present case, the Czech competition authority opposed the disclosure by České dráhy of evidence which that authority had ‘available to it’ in the context of its administrative proceedings, initiated in 2012, and the disclosure of ‘other documents requested by the applicant’, on account of the fact that they constituted ‘a comprehensive set of documents and [that] their disclosure might diminish the effectiveness of the policy of prosecuting infringements of competition law’. (48)
115. However, in order for the evidence to be eligible for the temporary protection resulting from its inclusion on the grey list, it must comply with the definitions included in Article 6(3) of Directive 2014/104. As regards a request which sets out in a reasonably detailed manner the evidence requested, (49) a refusal and/or an opposition as regards the disclosure of the evidence concerned cannot be expressed ‘wholesale’ nor be based on a general consideration that its disclosure might diminish the effectiveness of the policy of prosecuting infringements.
116. As regards evidence which does not fall within those definitions, that is to say evidence on the white list, a national court must itself carry out an examination in which it takes into account the need to safeguard the effectiveness of the public enforcement of competition law. (50) A person who is requested to disclose evidence cannot carry out such an examination and substitute it for that of the national court. Following that logic, given the need to remedy the asymmetry of information and ensure the effectiveness of the private enforcement of competition law, a need which underpins Directive 2014/104, that directive does not appear to preclude a national court having at its disposal, under its national procedural rules, an instrument enabling it to remedy the excessive use of the exemption provided for in Article 6(5) of that directive. Such a procedural instrument reinforces the practical effect of Articles 101 and 102 TFEU and contributes to the effectiveness of the private enforcement of competition law.
117. In those circumstances, Article 5(1) of Directive 2014/104, read in conjunction with Article 6(5)(a) thereof, must be interpreted as meaning that those provisions do not preclude a national court from ruling on the disclosure of evidence and ordering that evidence to be placed under sequestration, while postponing the examination of whether that evidence contains ‘information that was prepared by a natural or legal person specifically for the proceedings of a competition authority’, within the meaning of the latter provision, to a time when that court has access to that evidence.
5. The fifth question
118. By its fifth question, raised in the event of an affirmative answer to the fourth question, the referring court asks, in essence, whether a national court may, before determining whether the evidence whose disclosure has been ordered falls within Article 6(5)(a) of Directive 2014/104, refuse access to that evidence to the claimant and the other parties in accordance with Article 5(4) of that directive.
119. Although the referring court refers to Article 5(4) of Directive 2014/104, an interpretation of that provision does not appear to me to be necessary in order to provide it with a useful answer. While Article 5(4) of that directive concerns measures taken for the purpose of protecting confidential information, in the interests of a party to the proceedings or a third party, that is to say, in the ‘private interest’, Article 6(5) concerns the need to protect the interest of the public sector in the enforcement of competition law, that is to say, the ‘public interest’. In any event, it is sufficient to interpret that second provision in order to provide a useful answer to the fifth question referred.
120. Under Article 6(5)(a) of Directive 2014/104, national courts are not only entitled, as the fifth question presupposes (‘measures for the protection of confidential information adopted by a court may’), (51) but are also obliged to ensure that another party to the proceedings does not have access, in the course of proceedings initiated by a competition authority, to ‘information that was prepared by a natural or legal person specifically for [those proceedings]’. Accordingly, if a national court orders the disclosure of evidence which may be included on the grey list in order to ascertain whether that is the case, that court must ensure that another party to the proceedings does not have access to that evidence, where it is on the white list, before it completes that verification or, where it is on the grey list, before the competent competition authority has closed its proceedings.
121. Accordingly, Article 6(5)(a) of Directive 2014/104 must be interpreted as meaning that where a national court postpones the examination of whether the evidence whose disclosure has been requested contains ‘information that was prepared by a natural or legal person specifically for the proceedings of a competition authority’, that court must ensure that another party to the proceedings does not have access to that evidence, where it is on the white list, before it has completed that verification or, where it is on the grey list, before the competent competition authority has closed its proceedings.
VI. Conclusion
122. In the light of the foregoing considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Nejvyšší soud (Supreme Court, Czech Republic) as follows:
(1) Article 5(1) of Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union must be interpreted as not precluding a national court from ordering the disclosure of evidence for the purposes of national proceedings relating to an action for damages concerning an infringement of competition law, even where proceedings concerning that infringement are pending before the Commission, with a view to the adoption of a decision under Chapter III of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU], with the consequence that those national proceedings are stayed.
(2) Article 5(8) and Article 6(5)(a) and (9) of Directive 2014/104 must be interpreted as precluding national legislation which temporarily restricts, under Article 6(5) of that directive, not only the disclosure of information ‘prepared’ specifically for the proceedings initiated by the competition authority, but also all the information ‘submitted’ for that purpose.
(3) Article 6(5) of Directive 2014/104 must be interpreted as meaning that a stay of proceedings by a national competition authority on the ground that the Commission has initiated proceedings under Chapter III of Regulation No 1/2003 cannot be regarded as the closure of its proceedings by the national competition authority ‘by adopting a decision or otherwise’ within the meaning of that provision.
(4) Article 5(1) of Directive 2014/104, read in conjunction with Article 6(5)(a) thereof, must be interpreted as meaning that those provisions do not preclude a national court from ruling on the disclosure of evidence and ordering that evidence to be placed under sequestration, while postponing the examination of whether that evidence contains ‘information that was prepared by a natural or legal person specifically for the proceedings of a competition authority’, within the meaning of the latter provision, to a time when that court has access to that evidence.
(5) Article 6(5)(a) of Directive 2014/104 must be interpreted as meaning that where a national court postpones the examination of whether the evidence whose disclosure has been requested contains ‘information that was prepared by a natural or legal person specifically for the proceedings of a competition authority’, that court must ensure that another party to the proceedings does not have access to that evidence, where it is on the white list, before it has completed that verification or, where it is on the grey list, before the competent competition authority has closed its proceedings.