Access to evidence: a matter of life and death for competition law class actions?

For several years, access to evidence has been identified by potential claimants as one of the main difficulties in bringing damages actions for breach of competition rules in general, and class actions in this area in particular, in the European Union. As regards the former, Directive 2014/104/EU addressed the issue, but established a number of exceptions, in particular with regard to documents in the possession of competition authorities, with the result that, in practice, injured parties may have to wait for the public decision to become final before bringing a (follow-on) action (and even then they still have to prove causation and quantify damages). In the case of collective actions, in particular opt-in models, the problem may be even more acute, and Directive 2020/1828, which addresses this issue in the context of collective actions, does not cover competition law actions. In this paper, we will analyse this problem in the light of European Union law, in particular the Directives and the recent case law of the European Court of Justice, as well as some illustrative national examples, in order to determine whether the current disclosure of evidence procedure undermines the effectiveness of the collective redress for competition rules.