On 12 January, the Court of Justice ruled in the case of RegioJet a.s. versus the Czech Railway Company – Dráhy a.s. When the Czech competition authority and later the European Commission investigated the abuse of power by the railway company, RegioJet a.s. brought a claim for damages before the national civil court. RegioJet sought access to evidence concerning the national investigation into the railway company, including in respect of materials specially prepared for the national competition authority. The national court awarded this claim, after which the parties appealed and questions about the interpretation of Articles 5 and 6 of the Antitrust Damages Directive were put to the Court of Justice. These articles pertain to disclosure of evidence (Article 5) and disclosure of evidence included in the file of a competition authority (Article 6).
The Court of Justice held that an ongoing investigation by a competition authority does not automatically prevent a national court from granting disclosure of evidence. However, a court must assess whether disclosure of evidence can impede the investigation and whether the evidence is relevant, proportionate and necessary. This is different in the case of documents specifically prepared as part of a (national) investigation procedure or provided by the authority to that undertaking. Such documents from the ‘grey list’ of Article 6 of the Antitrust Damages Directive can only be provided after an investigation is terminated. The Court of Justice concluded that a suspension is not a termination.
In order to assess whether or not evidence falls under the ‘grey list’, the court may first order to inspect this material itself. Until it has formed an opinion on this and possibly also until the competition authority’s investigation has been completed, the evidence must be blocked from the applicant.
 Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union.