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Pre-Action Disclosure of Evidence in Damages Claims: Requirements, Standards and Plausibility. The Meliá Case (CJEU Case C-286/24)

Leire Gutiérrez Molina (Universidad de Deusto)

February 18, 2026

The issue

On 29 January 2026, the Court of Justice of the European Union (CJEU) delivered its judgment in the Meliá case. The case arose from a declaratory action seeking the disclosure of documents, brought by the association Ius Omnibus against Hoteles Meliá, with a view to subsequently bringing a representative action for damages on behalf of all Portuguese consumers affected by the infringement identified by the Commission in Decision C(2020) 893 final1. The specific aim of disclosure was to determine and prove the scope and effects of the anti-competitive practice identified in the Decision and to determine, prove and quantify the damage caused to consumers by that practice,

Although the association’s request was upheld at first and second instance, the Portuguese Supreme Court decided to refer three questions for a preliminary ruling in order to clarify several issues under EU antitrust law. In essence, it asked the CJEU: (1) whether Article 5(1) of Directive 2014/104 (henceforth, “Directive”) applies to an action for disclosure of evidence brought prior to the bringing of an action for damages; (2) if so, whether the requirement of the plausibility of the claim of harm under Article 5(1) of Directive necessarily compels the applicant to demonstrate that the existence of harm to the represented consumers is more likely than not; and (3) whether national courts may base their assessment of the plausibility of harm exclusively on the existence of a decision adopted by the competent competition authorities, further asking whether the fact that such a decision was adopted in the context of a settlement procedure concerning a vertical infringement by object has any bearing on that assessment.

The applicability of Article 5(1) of the Directive to the disclosure requirement prior to bringing an action for damages

The CJEU, in line with the Opinion of AG Szpunar2, clarified that, although the Directive does not expressly provide for the possibility of disclosure of evidence before the commencement of an action for damages —albeit for the purpose of subsequently initiating such an action— Member States may nevertheless allow for such a possibility. In the present case, Portuguese law permits pre-action requests for disclosure of evidence, and the Court held that, in such circumstances, Article 5(1) of the Directive must apply, since that provision must be interpreted broadly, in light of its wording, context and objectives (see, by analogy, CJEU, paragraph 12 of the judgment in Merck3 and paragraph 38, together with the case-law cited therein, in Paccar4). A contrary interpretation would risk undermining the right to compensation and the effectiveness of the private enforcement of competition law.

Although the meaning of certain provisions of the Directive may vary across different language versions, the Directive, on the one hand, imposes an obligation to ensure that persons harmed by an infringement of competition law are able effectively to exercise their right to claim full compensation—which requires the availability of tools capable of addressing information asymmetries—and, on the other hand, lays down rules governing the coordination between public and private enforcement of competition law. therefore,ecause public enforcement alone is not sufficient to ensure full compliance with Articles 101 and 102 TFEU, and the Directive therefore facilitates the contribution of private parties to the attainment of those objectives. Moreover, certain provisions, such as Article 5(3) and Recitals 22 and 27, expressly reflect the intention of the EU legislature not to exclude pre-action proceedings from the scope of application of the Directive. Accordingly, a broad interpretation of Article 5(1) of the Directive entails that that provision applies to requests for the disclosure of evidence made prior to the commencement of an action for damages, where such requests are provided for under national law. The application of this framework not only safeguards the effectiveness of the right to compensation but also serves to prevent abusive recourse to disclosure mechanisms, thus avoiding fishing expeditions.

The plausibility of harm: the existence of a decision declaring an infringement is not sufficient to justify disclosure, nor does its assessment change where the decision is adopted in the context of a settlement procedure

As regards the third question referred for a preliminary ruling, the CJEU, in line with the Opinion of the AG5, recalls that the right to claim compensation for harm requires three constituent elements: the existence of an infringement, the occurrence of harm, and a causal link between the two. In that regard, while a Commission decision establishing the existence of an infringement of EU competition law is sufficient to prove the existence of the infringement—here, a vertical restriction by object—pursuant to Article 16(1) of Regulation No 1/2003, the existence of harm and the causal link between the infringement and the harm fall within the assessment of the national court (see, inter alia, paragraph 65 of the judgment in Otis and Others6). The applicant must therefore substantiate those two elements on the basis of the facts and evidence reasonably available to it and sufficient to demonstrate the plausibility of a damages action, since the finding of an infringement in the Commission Decision affects only the nature of the infringement and its material, personal, temporal and territorial scope. Moreover, in the case of vertical restrictions —irrespective of whether they are restrictions “by object” or “by effect,”— the rebuttable presumption of harm laid down for cartels in Article 17(2) of Directive 2014/104 does not apply.

In the present case, the CJEU further clarifies that the Commission Decision itself may contain relevant elements for assessing the probability of harm and the existence of a causal link, which may assist the applicant in substantiating those elements together with other reasonably available facts and evidence. In particular, paragraphs 46 and 49 of the Decision establishing Meliá’s infringement indicate that the contracts at issue limited tour operators’ ability to sell accommodation freely throughout all EEA Member States, which constitutes an indication that the infringement may have affected Portuguese consumers.

Finally, the Court emphasises that the evidentiary value of the finding of an infringement is independent of whether the Commission decision was adopted in the context of a settlement procedure.

The standard for assessing the plausibility of a harm claim: a reasonably acceptable hypothesis

As regards the second question referred for a preliminary ruling, the CJEU begins by noting that the Directive neither defines the concept of “plausibility” nor refers to national law for its determination. Consequently, the Court holds that an autonomous interpretation of EU law is required, considering the wording of the provision, its context and the objectives of the legislation of which it forms part. According to its ordinary meaning, “plausibility” refers to likelihood, credibility or probability, and it must therefore be accepted that, to establish the plausibility of a damages action, the applicant is not required to demonstrate a high degree of probability that all three elements of liability are present.

As the AG observes7, the requirement of plausibility must be regarded as satisfied where the applicant persuades the national court seized of the request for disclosure that the hypothesis that the three conditions for liability are met is reasonably acceptable. Accordingly, the evidentiary threshold for obtaining disclosure for the necessary evidence must be lower than that required to establish the existence of liability on the merits. This interpretation is essential to facilitate the exercise of, and ensure the effectiveness of, actions for damages.

The CJEU therefore concludes that the plausibility of a damages action must be assessed solely on the basis of the facts and evidence to which the applicant has reasonably available access, without imposing an excessive burden of proof. Requiring the applicant to demonstrate that it is more likely than not that the conditions for liability are met would amount to a strict legal requirement capable of unduly hindering the effective exercise of the right to compensation, thereby frustrating the objectives of the Directive.

Accordingly, establishing the plausibility of a damages action, within the meaning of Article 5(1) of Directive 2014/104, does not require proof that it is more likely than not that the conditions for liability arising from an infringement of competition law are satisfied; it suffices that the applicant demonstrates that the hypothesis that those conditions are met is reasonably acceptable.

Towards effective access to justice: the role of national judges

This judgment sheds light on disclosure for evidence, which is crucial in cases where there is insufficient evidence to bring a representative damages action that is well-founded and likely to succeed. We consider the CJEU’s interpretation to be sound, taking as its reference point both access to justice and the principle of effectiveness of EU law. What remains to be seen is how national courts will interpret this judgment and the evidentiary standard they will apply to determine whether the claimant’s hypothesis is “reasonably acceptable”. This ruling is a step forward for consumers, but there is still a long road ahead.