CONFERENCES: EU DAMAGES DIRECTIVE - IMPLEMENTATION - DISCLOSURE OF EVIDENCE - CONFIDENTIAL INFORMATION

Disclosure of documents that lie in the control of the parties (Implementation of the EU Damages Directive into Member State law - Würzburg, May 5, 2017)

Article 5 of the Damages Directive requires Member States to enable courts to order disclosure of evidence under certain qualifying conditions, while protecting the rights of parties and third parties, in particular confidential information. This is an area in which common law jurisdictions and civil law jurisdictions tend to differ substantially. The contributions discuss how the Member States have implemented the provisions in the Damages Directive on disclosure, and to what extent the Damages Directive will result in a harmonisation of the practice in the courts in the Member States.

I. Introduction [1] Florian Wagner-von Papp Reader in Law (Associate Professor), University College London (UCL), Faculty of Laws, London 1. Commentaries on access to evidence in competition cases generally start by stating that antitrust cases are “fact intensive,” and information relevant to the infringement and its effects on the market will often be distributed asymmetrically, with the infringer usually being in an advantaged position. [2], [3] 2. Legal systems can address this disadvantage in several ways. They can presume the fact in favour of the injured party, either by reversing the burden of proof by establishing rebuttable or irrefutable presumptions, or they can leave the burden of proof formally with the disadvantaged party but require the party in possession of the

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Laurence Idot, Florian Wagner-von Papp, Jochen Bernhard, Frank Kroes, Marcella Negri, Disclosure of documents that lie in the control of the parties (Implementation of the EU Damages Directive into Member State law - Würzburg, May 5, 2017), September 2017, Concurrences Review N° 3-2017, Art. N° 84670, www.concurrences.com

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