The Act of 21 April 2017 on claims for damages caused by competition law infringements (the Claims Act) introduced applications for disclosure of evidence. Their principal purpose is to give victims a fair opportunity to prove an infringement and resulting loss, preventing lack of evidence from making it impossible to establish liability. Important evidence is often held only by defendants, third parties such as other cartel participants, or a competition authority.
Rules governing the application
Although designed principally for claimants, disclosure is also available to defendants. A party knowing from the outset that it lacks necessary evidence should apply in the statement of claim or defence. Later applications remain possible, subject to evidential preclusion, particularly in commercial proceedings. Essentially any evidence may be sought from the other party or a third person. The exception is leniency statements to competition authorities and settlement submissions: applications for these must be dismissed. Trade secrets or other protected information do not generally bar disclosure. Disproportionality is a separate ground for dismissal. The court must consider the legitimate interests of parties and the third person required to disclose, as well as usefulness and necessity: whether other evidence could prove the fact.
The application must meet general pleading requirements, identify the fact to be proved and describe the evidence as precisely as possible to enable identification. One application may cover several items. The applicant must also undertake to use the evidence solely for the pending proceedings. Failure to meet these conditions prevents the application being granted.
What if the requested evidence does not yet exist?
What if a claimant wants the defendant or third party to create evidence, such as a schedule of particular costs? The CJEU addressed this in PACCAR, C-163/21, in 2022. A Spanish court asked about evidence requiring defendants to compile specific information. They argued that classifying extensive data according to claimant-defined parameters imposed an excessive burden.
The Court ultimately allowed such evidence. Its central point was that the infringer knows what it did and what is alleged, and does not deserve protection in that respect. The opposite approach would prejudice the victim’s effective enforcement. The national court must assess whether disclosure imposes a disproportionate burden.
Restricting access
The Claims Act protects trade secrets and other legally protected information, including classified information. Where disclosure concerns such material and protection is necessary, the court may restrict inspection or set detailed access rules, particularly limiting or prohibiting copying or recording. Parties and the third person ordered to disclose may request safeguards; the court may also act of its own motion.
Procedure
The court may decide in closed session but must first hear the entity required to disclose. This may be oral, at a scheduled hearing, or through written statements.
The first-instance order may be challenged before the second-instance court by the parties, third persons and competition authorities required to disclose. The deadline is one week from service of the reasoned order. If issued in closed session, the court serves reasons of its own motion; if in open session, the party must request reasons within one week of pronouncement. The appeal must satisfy pleading requirements, identify the challenged order, request amendment or setting aside, explain the grounds and, where necessary, identify new facts or evidence. The Code of Civil Procedure’s interlocutory appeal rules apply.
A final disclosure order, once endorsed with an enforcement clause, supports enforcement. The court therefore has means to pressure a non-compliant entity. On the creditor’s application and after hearing the parties, it may set a deadline subject to a fine of up to PLN 10,000. It may instead threaten payment to the creditor of the requested sum for each day of delay.
