The Disclosure of Evidence under the Antitrust Damages Directive 2014/104/EU

The presentation concerns Articles 5 to 8 of Directive 2014/104/UE which create a “microsystem” of the law of the evidences. Then, it focuses on the disclosure of leniency statements and settlement submissions, by analysing the case law of the Court of Justice of the European Union before and after the entry into force of the Directive. It will be found out that while the Court has always been cautious, by affirming that it is necessary to weigh up, on a case-by-case basis, the respective interests in favour of disclosure of such documents and those in favour of their protection, the European Legislator preferred to unconditionally protect the efficiency of leniency and settlement programmes to the detriment of parties that suffered a harm, which have to find any possible way to support their damage claim in a context in which the information asymmetry and the difficulty of the factual and economic analysis are evident.