In February 2020, the European Commission imposed a fine of EUR 6.7 million on the Meliá hotel chain for entering into agreements with tour operators that discriminated against customers based on their place of residence, affecting consumers throughout the European Union. Meliá cooperated with the European Commission (EC) in exchange for a reduction in the fine and did not appeal this decision.
The Ius Omnibus Association (Ius) requested access to non-public documents from Meliá, which was necessary to confirm that Portuguese consumers were affected by these anti-competitive agreements and to quantify the resulting damage. Meliá refused to provide any information.
In July 2021, Ius brought an action before the Competition, Regulation and Supervision Tribunal (TCRS) seeking an order requiring Meliá to grant access to these documents as a preliminary step to a possible action for compensation for Portuguese consumers who stayed at Meliá hotels.
In March 2023, the TCRS ordered Meliá to hand over almost all the documents requested by Ius.
In October 2023, the Lisbon Appeal Court (TRL) rejected Meliá’s appeal and upheld the TCRS’s ruling in its entirety. The TRL had previously dismissed another appeal by Melia on the grounds of the Portuguese courts’ jurisdiction.
The Supreme Court of Justice (STJ) accepted an exceptional appeal by Meliá and referred preliminary questions to the Court of Justice of the European Union (CJEU) in March 2024. The STJ asked, in summary:
whether Directive 2014/104/EU (on actions for damages for anti-competitive practices) applies to actions for access to documents before the action for damages is brought;
whether the plausibility test imposed by this Directive requires the applicant for access to prove that it is more likely than not that the infringement caused damage (“more likely than not”); and
whether the damage can be concluded to exist solely on the basis of a European Commission decision, concluded by settlement, which identifies a vertical practice restricting competition by object.
On 12 June 2025, Advocate General Szpunar delivered his Opinion, arguing that the CJEU should clarify that:
The interpretation of the Directive may be relevant for the interpretation of national law in this regard. Pre-filing discovery is important and Member States can foresee it.
The Directive’s test of plausibility does not require proving that damage is more likely than not. Member States cannot be more demanding. It is enough to show it is reasonably acceptable (or a balance of probabilities). Otherwise, the effectiveness of the right to damages would be in jeopardy. The assessment of plausibility must be simplified, take into account informational asymmetry and only require claimant to indicate facts and evidence it can access without excessive cost or difficulty.
The finding of plausibility of damage cannot be based exclusively on the existence of an EC Decision (if it is not about a cartel or another practice to which the national legislator has applied a presumption of damage), but the national court must consider in its assessment the fact that identifying an object restriction implies a finding of potential effects on the market.
The Advocate General’s conclusions are not binding on the Court of Justice, but they serve as an indication of the position that may be adopted.
This Opinion largely confirms Ius’ position and should lead to Ius finally being successful in obtaining the disclosure of evidence by Meliá, allowing it to confirm that Portuguese consumers were harmed by Meliá’s illegal practices.
More importantly, it points to the setting of important precedents which will make access to evidence in antitrust actions for damages an effective reality, making justice more attainable for all injured persons, including consumers.