The current situation triggered by Coronavirus does not prevent companies being held accountable for infringements of antitrust laws.
Therefore, this does not exclude potential claims for damages under the Damages Directive.

Josh Holmes QC is Barrister with Monckton Chambers in London, twice winner of the Competition/EU Junior of the Year award (in 2011/12 and 2013/14) and is recognised in Chambers UK and Legal 500 as a leader in European / Competition law and Telecommunications law.
Josh’s practice covers all aspects of competition, EU, public and regulatory work. He appears regularly in the UK Competition Appeal Tribunal, the High Court, and before the EU courts in Luxembourg. He defended Google against claims for damages by Streetmap alleging an abuse of dominance by Google in relation to search results.

In the context of Damages Directive, disclosure is important…

”Disclosure is important for standalone and follow-on claims alike, because of the often secret nature of competition law infringements: see preamble of the Damages Directive, recitals (14)-(15):

“Actions for damages for infringements of Union or national competition law typically require a complex factual and economic analysis. The evidence necessary to prove a claim for damages is often held exclusively by the opposing party or by third parties, and is not sufficiently known by, or accessible to, the claimant.

“Evidence is an important element for bringing actions for damages for infringement of Union or national competition law. However, as competition law litigation is characterised by an information asymmetry, it is appropriate to ensure that claimants are afforded the right to obtain the disclosure of evidence relevant to their claim, without it being necessary for them to specify individual items of evidence.”

… but proportionality is also important

Claimants often make extensive disclosure claims; they can be hugely burdensome and costly for Defendants, creating unfair pressure on Defendants to settle rather than incur costs they will never recover.

There is therefore a need to ensure that the disclosure ordered by national courts is proportionate.  See recital (16):

“National courts should be able, under their strict control, especially as regards the necessity and proportionality of disclosure measures, to order the disclosure of specified items of evidence or categories of evidence upon request of a party…  disclosure can be ordered only where a claimant has made a plausible assertion, on the basis of facts which are reasonably available to that claimant, that the claimant has suffered harm that was caused by the defendant… categories [of document] should be defined as precisely and narrowly as possible on the basis of reasonably available facts.”

Striking the balance : Article 5, Damages Dir.

NO FISHING EXPEDITIONS:  Art.5(1) = Member States shall ensure that a Claimant can obtain disclosure from a Defendant or third party.  Claimant must present “a reasoned justification to disclose relevant evidence which lies in their control”

EQUALITY OF ARMS: Art.5(1): Defendant may also obtain disclosure from Claimant

PROPORTIONALITY: Art.5(3): disclosure of evidence must be limited to what is proportionate, having regard to legitimate interests of all parties, and considering:

(a) Extent to which the claim or defence is supported by available facts or evidence;
(b) Scope and cost of disclosure, including preventing non-specific searches for information unlikely to be of relevance
(c) Need to protect confidential information

Need to protect confidential information

Disclosure materials will often be commercially sensitive

The Claimant will typically be a customer; and fellow Defendants will be competitors

Without protections, there is a risk of distorting the competitive process
Art.5(4) therefore provides that “Member States shall ensure that national courts have the power to order the disclosure of evidence containing confidential information where they consider it relevant to the action for damages.  Member States shall ensure that, when ordering the disclosure of such information, national courts have at their disclosure effective measures to protect such information”.

Examples of measures:
(1) confidentiality rings;
(2) in camera hearings;
(3) redaction of confidential material;
(4) use of indicative ranges in documents (including judgment)

Need to respect legal professional privilege

Documents relevant to a claim often contain legal advice

EU law recognises that documents containing legal advice by an external EU lawyer should be protected against disclosure

National systems of law may have broader concepts of LPP, e.g. UK law which includes internal lawyers.

Article 5(6) provides that “Member States shall ensure that national courts give full effect to applicable legal professional privilege under Union or national law when ordering the disclosure of evidence”.

Art.5 constitutes a floor and not a ceiling

National legal orders can provide for more extensive disclosure, provided that confidentiality is protected; those from whom disclosure is ordered have an opportunity to be heard before disclosure is given; and specific rules on disclosure of docs from files of a competition authority.

See Art.5(8): “Without prejudice to paragraphs 4 (confidentiality) and 7 (right to be heard) and to Article 6 (competition authority files), this Article shall not prevent Member States from maintaining or introducing rules which would lead to wider disclosure of evidence”.

E.g. pre-action disclosure rules.”

The quoted text is an except from Josh Holmes presentation during EMEA Conferences Sensitive Antitrust Issues Conference, 15 Nov 2017 Bucharest.