In a judgment published on Jan. 12, 2023 (Case C-57/21, RegioJet a.s.), the Court of Justice of the European Union strengthens the right to access to the file for victims of anticompetitive practices. According to the Court’s ruling, national courts may order the disclosure of evidence held by a competition authority for the purpose of bringing a private enforcement action for compensation of competitive harm, even though the proceeding to establish the infringement was suspended by such competition authority following the opening of a Commission investigation regarding the same infringement. However, the national court must ensure that the disclosure of evidence is indeed necessary and proportionate for the assessment of the claim for damages before it.

The solution is different for “grey list” evidence, which includes “information prepared specifically for administrative proceedings initiated by a competition authority, information the authority drew up and sent to the parties in the course of those proceedings, and settlement submissions that were withdrawn”. Article 6(5) of Directive 2014/104 provides that national courts may order the disclosure of grey list evidence “only after a competition authority, by adopting a decision or otherwise, closed the proceedings”.

In the present case, the court found that the Czech competition authority’s suspension of the proceedings because the Commission had started investigation proceedings concerning the same facts did not constitute closure by that authority of the initial proceedings. Consequently, such a stay of proceedings does not allow the national court to order the disclosure of grey list evidence. Indeed, the court stated that allowing the disclosure of such evidence “could undermine, and undermine seriously, the effectiveness of that Commission investigation and, therefore, the objectives of [Directive 2014/104].”

The documents on the “black list” in this case — i.e., the leniency and settlement statements — are definitively and absolutely protected.

In summary, companies can ask national courts, through a private enforcement action, to disclose evidence in the course of proceedings before the competition authority, provided the evidence is not grey- or blacklisted.