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The Portuguese Competition Court interpreted EU Law, in its trucks cartel judgments, entirely in line with today's ruling on estimation of damages and burden of proof. It affirmed the same principles and arrived at a precise estimation on the basis of the evidence produced.

Court seems to draft replies thinking of large litigation, failing to address impact on small disputes. In so doing, it pushes the legal market and legislators to find solutions to allow effective collective redress, bundling, funding, etc.,or access to justice will be impossible.

How can a claimant seeking 3.000 EUR meet a high burden of proof , requiring it to obtain and analyze all evidence in possession of all cartel members, if it must pay legal and economist fees upfront and may not recoup all these costs at the end, even if successful?.

Unfortunately, the CJEU's judgment doesn't address an important issue, discussed by AG Kokott. Rules on costs and burden of proof need to be carefully balanced to prevent destroying right of access to justice and effectiveness of right to damages.

Claimants are entitled to sue only one (jointly and severally liable) cartel member, but should still make use of Art 5 to access evidence in possession of other infringers.

Claimants must meet their burden of proof and use means at their disposal (including Art 5) to precisely quantify damages. In absence of such efforts, courts cannot use Art. 17(1).

Art. 17(1) can only be used when impossible or too difficult to precisely quantify damage. Even with perfect info, precise surcharge or pass-on may be impossible to determine. CJEU signals courts should, when possible, conclude on specific quantum based on evidence, not estimate.

Estimation of damages.Art. 17(1) is applicable to every action filed after 26 December 2014. A defendant giving the court the data it used to argue for absence of damage is not, in itself, relevant to assess whether Art. 17(1) can be used.

. resulting from excessive claims or abusive behaviour (seemingly not the case when there was merely an understandable mistake in quantification).

Rules on Costs.Generally following AG Kokott, Court states EU Law is compatible with rule that orders a partly successful claimant (e.g., gets less damages than requested) to bear own costs and part of common costs, but only when those costs are the claimant's responsibility, . .

#CJEU has ruled on Tráficos Manuel Ferrer (C-312/21), a #truckscartel #antitrust #privateenforcement referral from Spain. Overall, has provided some clarity, but arguably less than desirable, and is likely to be quoted by claimants and defendants to support opposing views.

Have you been visited by some divine or mystical being this #Xmas?.Merry #Christmas, everyone!

(e.g., total sales or average prices it practiced over a period), rather than produce thousands of documents which would then have to be analyzed by the counterparty and court to arrive at that summary. #competitionlaw #accesstojustice #consumerprotection #litigation.

Thus, it may be justified (and even less burdensome for all), for a court to order a party to produce a summary or compilation of data in its possession, especially if the party can produce that summary with little effort. .

3. There are limits to this. Courts can only request evidence which is pertinent, proportional and necessary (specificity and proportionality), taking into account the legitimate interests and fundamental rights of the person being ordered to produce evidence.

This was framed against backdrop of private enforcement being a tool to reinforce effectiveness of #EUlaw and to complement public enforcement. Noted this is even more important for stand alone actions.

That could deprive the right to damages of its effectiveness. Courts can also order production of ex novo documents, prepared specifically for this purpose, e.g. by compiling or classifying information or data in their possession.

1. Directive’s rules on access to evidence (Art 5) are procedural, applicable ratione temporis to dispute filed after transposition.2. Under Art 5 of Directive, courts are not limited to requiring persons produce “preexisting” documents.

Voilà, the #CJEU judgment in #PACCAR (C-136/21)!. Another #antitrust #privateenforcement case arising from the #truckscartel which reinforces the effectiveness of injured parties' rights. Court followed AG’s Opinion, adding recommendations of caution.

Portuguese #Competition Court has adopted its first ruling on the #truckscartel, and it is amazing!.Read about it here:.#antitrust #privateenforcement #competitionlaw #eulaw.