Written commercial agreement

Significant imbalance

Sudden termination of established relationships

Competition investigation – French law

Civil competition action

French competition law

Competition investigation – European law

European competition law

Vertical restraints

Distribution law

Liability for defective products

Consumer law

Prohibition of measures having equivalent effect

European business law

Corruption

Compliance

Economic law

Shareholders' agreements

Removal of company directors

Abuse of voting rights

Companies

Action for infringement (counterfeiting)

Rights conferred by the trademark

Patentability

Industrial property

Commercial rent review

Renewal of the commercial lease

Despecialization (change of use)

Commercial leases

Reform of contract law

Reform of the law of special contracts

Preliminary sales agreement

Obligation to deliver goods in conformity

Classification of the contract for services (contrat d'entreprise)

Effects of the agency agreement with respect to third parties

Business contracts

Ongoing contracts

Recovery claims

Court-approved transfer plan

Bankruptcy proceedings

Personal data breaches

White collar crime

Commercial law

500 Questions - Business Law

Being a matter of public policy under French law and automatic under EU law, the invalidity (or nullity) incurred is absolute. Any person may rely on it, including the parties to the agreement or participants in the infringement. An agreement may be annulled even if all the contracting parties did not participate in the anticompetitive practice. Nullity (invalidity) may apply to::

only those elem …

What is the nature and scope of the invalidity (nullité)?

Articles 101, para. 2, TFEU and L. 420-3 of the Commercial Code grant national courts the power to declare null and void contractual clauses that are contrary to the competition rules contained in Articles 101, para. 1, L. 420-1, L. 420-2, L. 420-2-1, and L. 420-2-2.

From this jurisdiction of civil courts, case law has inferred a right to compensation for victims of offenses, and consequently the possibility of initiating a civil competition action and imposing a civil sanction. Unlike the administrative sanction for anticompetitive practices, the civil sanction aims to compensate for harm rather than deter the practice. It appears as a complement rather than a substitute for the administrative sanction, with which it can overlap .

Traditionally, in French law, a competitive fault did not necessarily constitute a civil fault because, unlike the solution adopted in European law where it was accepted that a decision of the Commission constituted a presumption of fault, the French court considered that the decisions of the Competition Authority, a mere administrative authority, did not legally bind the courts .

Since the entry into force of the Hamon Law of 17 March 2014, in the case of a class action, breaches of French or European competition law, established by a decision of a national or European Union authority or court, which is no longer subject to appeal regarding the establishment of these breaches, constitute an irrebuttable presumption of the existence of the breaches by the professional concerned. With the transposition of Directive No 2014-104 of 26 November 2014 by Ordinance No 2017-303 of 9 March 2017, the same irrebuttable presumption appears in the Commercial Code concerning individual actions based on a decision of the Competition Authority. Even though, in practice, the decisions of the latter exerted a certain authority over the courts responsible for compensating the damage, the new Article L. 481-2 of the Commercial Code unequivocally revisits the case law of the Court of Cassation .

Local and regional authorities, victims of anticompetitive practices, can take action before administrative courts to seek compensation for the damage suffered based on quasi-delictual liability. Thus, a  contracting authority victimized by fraud resulting from consultations and exchanges of information between competing bidders prior to a call for tenders is entitled to seek compensation for the damage corresponding to the additional cost of the work compared to the real price determined by free competition . The administrative court is more likely to infer proof of fraudulent maneuvers from the final decision of the Competition Authority having classified the agreement as anticompetitive. The Tribunal des conflits (dispute tribunal) has extended the jurisdiction of administrative courts in cases of competitive damage related to an administrative contract. The Tribunal seems to consider that the administrative judge, in his or her capcity as the “contract judge”, must handle all disputes related to the liability of persons for behaviors that may have “altered the stipulations” of such a contract and caused harm to the public entity. It must be inferred that the nature of the liability action, whether based on Article 1240 of the Civil Code or on the defect of consent, matters little .

The Council of State completed this evolution by establishing the jurisdiction of the administrative judge, including when the action for compensation is brought by a public entity against a public works contractor who did not submit a bid for a contract and therefore did not conclude a contract .

These solutions, which effectively extend the jurisdiction of the administrative court at the expense of the judicial court, appear to be open to criticism. However, they are enshrined by the ordinance of 9 March 2017, which introduced a series of provisions into the Code of Administrative Justice regarding the regime of actions for compensation before the public law court (Code of Administrative Justice, Art. L. 775-1, Art. R. 775-1 to R. 775-3, R. 775-5, R. 775-12 to R. 775-15).

Any individual is entitled to seek redress for the damage caused to it  by an agreement or by conduct likely to restrict or distort competition  where there is a causal link between the damage and the practice at  issue.

ECJ Case C-295/04 Vincenzo Manfredi, Judgment of 13 July 2006, LawLex200600002419JBJ.

A party to an agreement contrary to Article 101 TFEU may seek redress  for the damage caused to it by the agreement as long as it has not  played a significant role in the resulting distortion of competition.

ECJ Case C-453/99 Courage, Judgment of 20 September 2001, LawLex200500004898JBJ.

The trial court is not bound by the findings of fact in the decision of the Competition Authority when ruling on the claim for damages brought in the same case.

Cass. com., 17 July 2001, LawLex200200000095JBJ.

An abuse of dominant position established by a decision of the Competition Authority constitutes a civil fault within the meaning of Article 1240 of the Civil Code for which its author must provide compensation.

CA Paris, 24 February 2022, LawLex202200001185JBJ.

The Commission's decision establishing the infringement, upheld by the Union court, is sufficient to establish the existence of fraudulent maneuvers by the undertakings bidding for a contract.

Cons. d’Et., 12 October 2020, LawLex202000002480JBJ.

The breach of Article L. 420-1 of the Commercial Code, sanctioned by the Competition Authority, constitutes a fault under Article 1240 of the Civil Code, so that the court is only required to rule on the causal link between this fault and the alleged damage, as well as on the existence and quantification of the latter.

T. com. Paris, 20 February 2020, LawLex202000000275JBJ.

A public entity that is a victim, by its contracting party, of anti-competitive practices constituting fraud that vitiated its consent, may bring the matter before the administrative judge, alternatively or cumulatively, on the one hand, with claims seeking the annulment of the disputed contract and the financial consequences of its retroactive disappearance, and, on the other hand, with claims seeking the condemnation of the contracting party, on the grounds of quasi-tortious liability, to compensate for the damages suffered due to its wrongful conduct.

Cons. d’Et., 18 June 2022, LawLex202200003165JBJ.

Disputes relating to the liability of persons whose conduct is alleged to have altered the stipulations of an administrative contract and thereby caused harm to the public entity that entered into this contract fall under the jurisdiction of the administrative court.

T. confl., 16 November 2015, LawLex201500001605JBJ.

When a public entity is a victim, during the awarding of a public contract, of anticompetitive practices, it is entitled to hold liable in quasi-tort not only the undertaking with which it contracted but also the undertakings whose involvement in such practices affected the contract award procedure, and to request the administrative court to hold them jointly liable.

Cons. d'Et., 27 March 2020, LawLex202000000383JBJ.

What is the regulatory context?

Two scenarios are possible for initiating a civil competition action:

either the action is introduced in addition to the public action brought by the Competition Authority, subsequently to it, and the claimant can benefit from the investigation conducted by the authority (follow-on action);

or the case is brought independently as a principal action in the courts without a competition authority having previously ruled on the practices or before such a decision (stand-alone action).

In the case of an individual action, the claimant has the choice between a follow-on action or a stand-alone action. However, in the case of a group action, only a follow-on action can be initiated since the professional's liability can only be engaged based on a decision issued by the competent national or European Union authorities or courts that establish the infringements and is no longer subject to appeal for the part relating to these infringements.

When the civil action is brought as a principal action before the civil court - stand-alone action, the victim must provide proof of an infringement of competition rules. However, the technical nature of litigation related to competition law requires specific expertise and often significant investigative resources. Proving the anticompetitive practice may be difficult because the harm to competition that the victim must establish requires, in particular, the provision of information to define the market and measure the economic impact of the reported practices.

In the case of a follow-on action, the finding of the infringement by the Competition Authority is binding on the civil court seized second, both in the case of a class action and an individual action, since the Ordinance of 9 March 2017. Therefore, the victim will only need to rely on the Authority's decision and establish the existence of a causal link between this infringement and the damage for which they seek compensation. This results in an easing of the burden of proof for the latter. However, this system presents a major drawback: particularly long procedural delays, as it will be necessary to wait for the decision of the Competition Authority to become final regarding the proof of competition law violations (Commercial Code, Art. L. 481-2).

Advice: Opt for direct action before the courts or follow-on depending on each case.

When offenses are complex and evidence is difficult to gather, an investigation by the competition authorities will be preferred. When the offense is proven, the compensation judge will be immediately seized to save time.

Follow-on or stand-alone action?

Civil actions are relatively rare because bringing them involves two sets of challenges. The first relate to the range of defenses available under procedural and tort law, including the statute of limitations, contributory negligence, and the passing-on defense. The second set relates to the admissibility of evidence, which must balance conflicting interests: the victims’ right to obtain compensation and the competition authorities’ desire to protect leniency applicants. The Court of Justice requires that national provisions governing the procedural aspects of actions for damages and the scope of compensation comply with the principles of equivalence and effectiveness. Under the first principle, the rules applicable to actions intended to safeguard the rights that individuals derive from the direct effect of EU law must not be less favorable than those concerning similar domestic actions; and under the second, they must not render the exercise of rights conferred by the EU legal order practically impossible or excessively difficult .

However, the Commission and the Competition Authority are both quite reluctant to disclose the elements of the file in the event of civil action. By favoring public enforcement, the authorities aim both to encourage undertakings to resort to the leniency procedure, ensure the proper conduct of the investigation, and preserve business secrets .

There is no economic analysis, however, to show that granting access to the documents of the leniency procedure would deter undertakings from submitting to it, while the resulting immunity from fines represents a real gain for the for the whistleblower..

The fundamental issue raised by civil competition litigation therefore lies in striking a difficult balance between public enforcement—traditionally favored by continental European countries—and private enforcement—preferred by Anglo-Saxon countries and currently expanding in Europe—in order to preserve the effectiveness of the existing system while avoiding subjecting companies to a dual enforcement system.

National legislation cannot make access to the file by third parties wishing to bring an action for damages, including documents disclosed under a leniency program, conditional on the consent of all parties to the proceedings, without allowing national courts any possibility of balancing the interests involved.

CJEU Case C-536/11 Donau Chemie AG, Judgment of 6 June 2013, LawLex201300001049JBJ.

When a national court, in application of a procedural instrument of national law, postpones the examination of evidence to determine whether it contains “information prepared by a natural or legal person expressly for the purposes of proceedings initiated by a competition authority,” it must ensure that the applicant or other parties to the proceedings and their representatives cannot access it before this verification, when such evidence falls under the white list, or before the closure of the proceedings before the competition authority, when it falls under the gray list.

CJEU Case C-59/21 RegioJet a.s., Judgment of 12 January 2023, LawLex202300002127JBJ.

Public or private enforcement?

Directive No 2014/104 of 26 November 2014, concerning certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and the European Union, has, through the measures it sets out, facilitated the introduction of actions for damages by victims of anticompetitive practices.

In particular, it facilitated victims' access to evidence, granted final decisions of national competition authorities the force of irrefutable proof of the infringement before national courts and prima facie evidence before the courts of other Member States, and established the theory of the passing-on defense, which allows the defendant to claim that the claimant passed on the overcharge resulting from the infringement. However, the Directive ensured the preservation of public enforcement interests since statements made to obtain leniency and settlement proposals are exempt from the right of access.

The directive was transposed into domestic law by Ordinance No 2017-303 and Decree No 2017-305 of 9 March 2017, the provisions of which are found in Articles L. 481-1 et seq. and R. 481-1 et seq. of the Commercial Code.

What is the current status of the Directive on damages and its transposition into national law?

Pursuant to Articles 101, para. 2, TFEU and L. 420-3 of the Commercial Code, civil courts may declare the nullity of clauses, agreements, or decisions prohibited by competition rules without specifying the competent courts in the matter.

Indeed, the competition authorities are vested only with decision-making power limited to the imposition of interim measures, injunctions, or financial penalties. Early on, the Court of Justice emphasized that it was up to the national courts to draw the consequences of the nullity of contractual clauses contrary to Article 101 TFEU .

Article 1(2) of Directive No 2014-104 now specifies that actions for damages are brought before national courts. The victim of anticompetitive practices who wishes to obtain compensation for the harm suffered must apply to the judicial or administrative courts to be compensated or to obtain the annulment of the agreement.

In France, a specialization of jurisdictions in favor of eight Judicial Courts and Commercial Courts has been established within the judicial order for the application of competition law (Art. L. 420-7 and R. 420-3 Commercial Code), these mandatory jurisdiction rules applying even in summary proceedings. The Paris Court of Appeal is solely competent to hear appeals against the judgments of these specialized jurisdictions . The lack of jurisdiction of the court seized, based on Article L. 420-7 of the Commercial Code, can be raised even when the rules related to anti-competitive practices are invoked as a mere defense or ancillary. Only the jurisdictions referred to in Articles R. 420-3 to R. 420-5 of the Commercial Code have the power to rule on the defense based on Articles L. 420-1 of the same code and 101 TFEU raised by one of the parties. In terms of restrictive competition practices, the Court of Cassation recently reversed its case law to specify that the rules designating the only specialized jurisdictions to hear the application of the provisions of Article L. 442-1 of the Commercial Code establish a rule of exclusive jurisdiction allocation and no longer a plea of inadmissibility . There is no doubt that the solution is transposable to actions based on the provisions of Articles L. 420-1 and L. 420-2 of the Commercial Code.

A jurisdiction clause conferring competence to a non-specialized court does not apply to a dispute based on Article L. 420-1, L. 420-2, L. 420-2-1, or L. 420-2-2, due to the mandatory public policy provision character of the competence attribution to specialized courts provided by Article L. 420-7 of the Commercial Code. However, in the international order, jurisdiction clauses can apply, provided they refer to competition law violations when the victim complains of damage caused by a cartel, and without restriction when an abuse of dominant position is alleged . The competence of specialized courts to hear disputes related to anti-competitive practices also yields in the presence of an arbitration clause.

Alongside civil or commercial courts, administrative courts adjudicate liability actions within their jurisdiction (CJA, Art. L. 775-1) . Finally, criminal courts competent for the offense of fraudulent, personal, and decisive participation in a cartel or abuse of dominance may also hear civil actions related to these offenses (Commercial Code, Art. L. 420-6).

In France, only eight specialized courts within the judicial system are competent to award damages in competition matters. The court must even raise of its own motion this rule of public policy provision, which constitutes a bar to proceedings.

It should be noted that since 1 January 2025, twelve economic activity courts have been established for a period of four years. This reform introduces a contribution for economic justice when the claim exceeds EUR 50,000. This contribution may be applicable to the claimant in the case of a follow-on action. 

The consequences of the nullity of contractual clauses contrary to Article 101 TFEU on deliveries made and the resulting payment obligations do not fall under European law but must be assessed by the national court according to its own law.

ECJ Case 319/82 Société de Vente de Ciments et Bétons de l'Est SA , Judgment of 14 December 1983, LawLex200400003565JBJ.

A court of appeal other than the Paris Court of Appeal cannot be seized of an appeal against a judgment rendered by a specialized court.

Cass. com., 10 July 2018, LawLex201800001104JBJ.

The Paris Court of Appeal has sole jurisdiction, in accordance with Articles L. 420-7 and R. 420-5 of the Commercial Code, to hear appeals against decisions rendered by specialized courts in matters of anti-competitive practices, whether these decisions were made on the merits or by the president of the court seized of a request for in futurum investigative measures based on the existence of concerted practices.

CA Bordeaux, 28 February 2023, LawLex202300003080JBJ.

The provisions that designate the sole specialized courts to hear the application of the provisions of Article L. 442-1 of the Commercial Code establish a rule of exclusive jurisdiction and not a ground for inadmissibility. Therefore, when a defendant in an action based on ordinary law files a counterclaim invoking the provisions of Article L. 442-1, the court seized, if it is not a court designated by Article D. 442-2, must, if its lack of jurisdiction is raised, depending on the circumstances and the interdependence of the claims, either declare itself incompetent in favor of the court designated by this text and stay the proceedings until this specialized court has ruled on the claim, or refer the entire case to this specialized court.

Cass. com., 18 October 2023, LawLex202300012489JBJ.

A jurisdiction clause applies to a compensation action based on a violation of Articles 102 TFEU and L. 420-2 of the Commercial Code even if it does not expressly refer to disputes relating to liability incurred due to an infringement of competition law.

Cass. 1re civ., 30 January 2019, LawLex201900000168JBJ.

A dispute concerning the liability of companies and their employees due to actions likely to have led a region to enter into public contracts under disadvantageous pricing conditions, and aiming at compensating the damage resulting from the difference between the terms of the public contracts actually concluded and those under which they should have been concluded under normal competitive conditions, falls under the jurisdiction of the administrative court.

Decree No 2024/1225, 30 December 2024, regarding the experimentation of the contribution for economic justice: Jo. 31 Dec. 2024, text No 11.

Which courts have jurisdiction?

The question arose before the Court of Justice regarding the determination of the competent court to hear actions for damages brought by victims of anticompetitive practices against their perpetrators when they are established in different Member States. According to the Court, an action for damages for competitive harm has a tortious nature , which places it under the jurisdiction of the court of the place where the harmful event occurred or may occur (recast Brussels I Regulation , Art. 7).

In the presence of multiple participants in an agreement, established in various Member States, the victim may bring the action before the court of the domicile of any one of these undertakings. They may also bring the case before the court of the place where the agreement or a particular arrangement underlying this agreement was concluded, or the court of the place of their own registered office.

The court with international and territorial jurisdiction to hear, based on the place where the damage materialized, an action for compensation for competitive harm, is the one where the market prices were distorted , or, in the case of purchases made in several places, the one in whose jurisdiction the company's registered office is located .

The action aimed at stopping certain behaviors implemented within the framework of a contractual relationship, based on an allegation of abuse of dominant position committed by one of the parties, falls under tort matters within the meaning of the Brussels I (recast) Regulation.

CJEU Case C-59/19 Wikingerhof GmbH & Co. KG, Judgment of 24 November 2020, LawLex202100000024JBJ.

In an action for compensation for damage caused by price fixing, the “place where the harmful event occurred” is the place where market prices were distorted, even where the claim is directed against a participant in the cartel with whom the victim had not established contractual relations.

CJEU Case C-451/18 Tibor-Trans Fuvarozó és Kereskedelmi Kft. v DAF Trucks NV, Judgment of 29 July 2019, LawLex201900000991JBJ.

In an action seeking compensation for damage caused by anticompetitive  conduct, the place where the place of the event giving rise to the  damage may be either the place of conclusion of an anticompetitive  agreement contrary to Article 101 TFEU, or the place where the predatory  prices were applied and offered, insofar as the predatory prices are  not limited to the implementation of the agreement but constitute a  separate infringement of Article 102 TFEU.

CJEU Case C-27/17 AB “flyLAL-Lithuanian Airlines”, Judgment of 5 July 2018, LawLex201800001095JBJ.

According to Article 7(2) of Regulation No 1215/2012, within the market  affected by collusive arrangements on the fixing and increase in the  prices of goods, shall have international and territorial jurisdiction  to hear, in respect of the place where the damage materializes, of an  action for damages caused by such arrangements contrary to Article 101  TFEU either the court within whose jurisdiction the undertaking claiming  to be injured purchased the goods affected by the said arrangements or,  in the case of purchases made by that undertaking in several places,  the court within whose jurisdiction its registered office is situated.

CJEU Case C-30/20 RH, Judgment of 15 July 2021, LawLex202100004617JBJ.

Which court has territorial jurisdiction in proceedings against companies established in different Member States?

Being a matter of public policy under French law and automatic under EU law, the invalidity (or nullity) incurred is absolute. Any person may rely on it, including the parties to the agreement or participants in the infringement. An agreement may be annulled even if all the contracting parties did not participate in the anticompetitive practice. Nullity (invalidity) may apply to::

only those elements of the agreement subject to the prohibition;

the agreement as a whole when the incompatible elements are inseparable ;

the agreement, as a result of the collusion, with a third party who was aware of the unlawful nature of the practices.

The illegality of a concerted practice, however, has no influence on the contracts concluded to implement it, as under Article 101, paragraph 2, and L. 420-3 only concerns agreements between undertakings prohibited by Articles 101(1) TFEU or L. 420-1 . Furthermore, clauses that do not comply with a new block exemption regulation may be annulled by the national court if they do not meet the conditions of the exemption and are anticompetitive in nature.

The consequences of the nullity of incompatible terms fall under national law, which may hold that the application of a contract null and void by operation of law may cause harm to one of the parties  or give rise to a right to reimbursement of expenses incurred for its implementation .

The automatic nullity of all contractual provisions incompatible with Article 101(1) TFEU extends to the entire agreement containing them only if they do not appear separable from the agreement itself.

CJEU Case C-25/21 Repsol Comercial de Productos Petolíferos SA, Judgment of 20 April 2023, LawLex202300005726JBJ.

The nullity provided for by Article L. 420-3 of the Commercial Code only targets the anticompetitive agreement and does not extend to the public contract subsequently concluded under the pricing terms resulting from the agreement.

Cass. com., 13 September 2017, LawLex201700001412JBJ.

The application of a clause that obliges the distributor to adhere to rates applicable to certain negotiated accounts and clients and to comply with the supplier's recommended sale price may have caused harm to the contracting parties, even though it is null and void by operation of law.

Cass. com., 28 September 2022, LawLex202200007677JBJ.

In the event of the cancellation of the contract due to an anticompetitive practice attributable to the contracting party, the latter must return the sums paid to them by the public entity but may, in return, on a quasi-contractual basis, claim reimbursement for the expenses they incurred that were useful to the public entity.

Cons. d'Et., 17 June 2022, LawLex202200003165JBJ.

Under the principle of procedural autonomy, invalidity proceedings are governed by national law. In France the limitation period for an action for annulment falls under the provisions of Article 2224 of the Civil Code .

Unless it is established that the victim was fully aware beforehand, the limitation period only starts from the decision of the Competition Authority, which sets the certain date of the discovery of the cartel .

The nullity under the mandatory public policy provided for by Article L. 420-3 of the Commercial Code falls not under the limitation rules set out by Article 1304 of the Civil Code (editor's note: since repealed), but under those provided by Article 2224 of the same code.

CA Paris, 2 July 2015, LawLex201500000873JBJ.

The action for invalidity of a public contract concluded at prices determined by a collusion must be brought within five years of the publication of the decision condemning the participating undertakings by the Competition Authority, which provides the victim with sufficiently certain knowledge of the extent of the anti-competitive practices.

CA Lyon, 3 December 2020, LawLex202000003603JBJ.

What is the limitation period for an action for invalidity (nullité)?

Victims of anticompetitive practices must bring their claims before the competent courts to obtain compensation for their harm. Any person is entitled to seek compensation for damage caused by a contract or conduct contrary to the competition rules, whether they are direct or indirect parties  to the agreement, provided they have not played a significant role in the distortion of competition. It does not matter if they have not contracted with the members of the cartel , especially when, as a result of the cartel, their own suppliers have increased their prices (umbrella effect) .

The Commission itself may bring an action for damages before national courts on behalf of the institutions of the Union, victims of a price-fixing agreement. Similarly, persons who do not act as suppliers or buyers in the market affected by an agreement may seek compensation for the damage resulting from the fact that, due to this agreement, they had to grant larger subsidies than if it had not existed and, consequently, were unable to use this differential in more profitable investments.

On the other hand, if a union of agricultural syndicates has standing to act to defend the collective interest of the profession considered as a whole , it cannot represent the individual interests of its members. Similarly, a holding company is not admissible to act for compensation for the loss of opportunity suffered by its subsidiary, but only for damage it has personally suffered.

When the damage to the public entity results from anticompetitive practices in which its governing bodies participated, such that due to their involvement, it could not assert its rights to compensation, the limitation period can only begin from the date on which, after their replacement, the new governing bodies, uninvolved in the implementation of the practices, acquired sufficiently certain knowledge of their extent.

Cons. d'Et., 17 May 2023, LawLex202300007174JBJ.

The absence of contractual links between the undertakings prosecuted and the victim of the infringing behavior is irrelevant as long as the liability action is based on the provisions of Article 1240 of the Civil Code.

T. com. Lyon, 27 October 2022, LawLex202200010136JBJ.

The public entity victim, on the occasion of the awarding of a public contract, of anticompetitive practices, may invoke the quasi-tortious liability not only of the undertaking with which it contracted, but also of those that did not submit a bid but whose involvement in the practices affected the awarding procedure, and request the administrative court to hold them jointly liable.

Cons. d'Et., 27 March 2020, LawLex202000000377JBJ.

The victim may obtain compensation from the members of the cartel for the damage suffered, even in the absence of contractual links with them.

CJEU Case C-557/12 Kone AG, Judgment of 5 June 2014, LawLex201400002051JBJ.

There is no general rule precluding a trade association from seeking compensation for economic loss caused by an anticompetitive practice, provided that such loss does not constitute the aggregate of individual losses suffered by the members, but corresponds strictly to the loss suffered by the collective body they form.

CA Paris, 22 November 2023, LawLex202300014112JBJ.

Who has standing to seek compensation?

The victim of anticompetitive practices who wishes to obtain compensation for the harm suffered due to an anticompetitive practice must demonstrate that the three classic conditions of liability are met: a fault, a harm, and the causal link between the fault and the harm.

Fault must be the determining factor in the production of the damage, with case law generally preferring the theory of adequate causation, which considers that only the factors constituting the determining causes of the damage should be classified as the event giving rise to the damage, rather than the theory of equivalence of conditions, which considers as the cause of the damage all the factors without which it would not have occurred.

What are the conditions for bringing an action for damages?

Before the transposition of the directive on the compensation for infringements of competition law , fault (faute) was characterized according to the criteria of Article 1240 of the Civil Code. Under the terms of Article L. 481-1 of the Commercial Code, resulting from the transposition ordinance of 9 March 2017, any behavior that constitutes an infringement of European or domestic competition law characterizes a fault. Unlike European law, an action for compensation under French law is not limited to anticompetitive agreements (cartels) and abuse of dominant position but can also extend to harm caused by abuse of economic dependence (Commercial Code, Art. L. 420-2, para. 2), a practice of excessively low prices (Art. L. 420-5), import exclusivity in overseas territories (L. 420-2-1) or obtaining exclusivity by a reservation center to the detriment of an undertaking that performs specific public transport services or occasional collective transport services carried out by small commercial or passenger vehicles (L. 420-2-2).

In practice, it is necessary to determine the impact of the decision rendered in the context of the competition procedure on the characterization of the fault. A distinction must be made depending on whether the competition procedure resulted in commitments, a settlement in case of acknowledgment of the objections, or a straightforward conviction.

Collusive practices sanctioned by the Competition Authority constitute a faute civile within the meaning of Article 1240 of the Civil Code.

CA Paris, 17 May 2023, LawLex202300007182JBJ.

An anticompetitive practice such as abuse of a dominant position constitutes a civil tort (faute civile) with respect to the victim.

Cass. com., 13 September 2017, LawLex201700001428JBJ.

What constitutes a fault?

The commitment procedure occurs without finding an infringement or absence of infringement. Therefore, the decision adopted based on Article 9 of Regulation No 1/2003 does not prevent a third party affected by the commitment made mandatory from bringing the matter before national courts to assess whether the clauses neutralized by the Commission are indeed contrary to Article 101(1),TFEU. The same applies under French law. However, the undertaking that agrees to make commitments under Article L. 464-2, I of the Commercial Code does not acknowledge having engaged in anticompetitive practices . If an operator who considers themselves a victim of the practice in question retains their right to seek damages, they must bear the burden of proof of the fault before the civil courts .

Before the Macron Law of 6 August 2015, the competition procedure could result in a company not contesting the allegations, which led to a reduced penalty being imposed. The Competition Authority, like the Paris Court of Appeal, considered that not contesting the allegations was neither an admission nor an acknowledgement of guilt. However, the Court of Cassation seemed to challenge this analysis and consider that non-contestation amounted to an acknowledgment of the infringement .

The solution should, in principle, evolve with the substitution of the non-contestation of objections procedure by a settlement procedure that allows the rapporteur to propose to the undertaking that does not contest the objections a settlement setting the maximum and minimum amounts of the envisaged financial penalty. The undertaking participating in a settlement indeed acknowledges its participation in the infringement, an acknowledgment of liability in return for which its financial penalty is reduced. Consequently, the settlement should constitute proof of the infringement that the victim can rely on before the civil court . However, for the time being, no decision has been rendered in this scenario.

Advice: Gather evidence of anticompetitive practices.

Obtaining evidence is a difficult exercise. The administrative decision condemning the cartel is often very concise, especially where undertakings have obtained leniency. You will have to fight tooth and nail to get the judge to order the disclosure of evidence relating to the cartel or to authorise you to produce it yourself, without which your claim for damages is likely to be unsuccessful.

The undertaking acting to remedy its competitive damage cannot, to establish the dominant position of the perpetrator of the practices, rely on a commitment acceptance decision that does not at any point confirm the existence of such a position but at most does not exclude it in a secondary market.

CA Paris, 9 March 2022, LawLex202200001532JBJ.

A commitment or interim measures decision made by the Competition Authority cannot serve as the basis for characterizing an anticompetitive practice before civil courts, as it only constitutes initial evidence of such a practice.

CA Paris, 12 December 2018, LawLex201800001974JBJ.

Non-contestation of the objections  by certain parties to the agreement limits the scope of the discussion for the other parties to the sole question of their participation in the alleged anti-competitive practice.

Cass. com., 29 March 2011, LawLex201100000708JBJ.

Is there an acknowledgment of the offense in the case of commitments or settlement procedures?

French law, until the transposition of Directive No 2014/104, adopted a nuanced position. Before civil and commercial courts, a conviction by the Competition Authority did not necessarily constitute a fault in the context of a damages action when it was an individual action. Since the decisions of the Competition Authority are administrative decisions, they did not bind the civil courts, which could decide not to convict an undertaking for practices classified as collusion by the Authority. In practice, the court in most cases considered that the conviction by the Competition Authority constituted, or at least presumed, the fault. Administrative case law, for its part, tended to infer the existence of a fault from the administrative conviction.

When the action for damages introduced after the competition procedure is a class action, the finding of an infringement of competition rules in a final decision constitutes, pursuant to the Hamon Law of 17 March 2014, an irrebuttable presumption of fault.

Moreover, the finding of the infringement by the European authorities was binding on the national courts: breaches of EU law were therefore to be considered as civil faults under French law .

Since the transposition of Directive No 2014/104 by the Ordinance of 9 March 2017, the issue of proving fault is no longer posed in the same terms. Indeed, Article L. 481-2 of the Commercial Code now provides that:

an anticompetitive practice is irrefutably presumed to be established once it has been found by a final decision of the Competition Authority or the appellate court ;

a final decision of a competition authority or a court of appeal of a Member State constitutes a means of proof of the commission of the anti-competitive practice before the French courts;

a national court hearing an action for damages cannot make a decision that would contradict a final decision of the Commission made on the basis of Articles 101 or 102 TFEU .

Interestingly, the Paris Commercial Court, in a case between Smart AdServer and Google, considered that a practice classified as anticompetitive by the Competition Authority for the period after the transposition of Directive No 2014/104/EU of 26 November 2014, is also presumed to be wrongful for the period prior to this transposition. 

Pursuant to Article 16 of Regulation No 1-2003, the finding of a violation of Union law by the European authorities is binding on national courts seized of an action for damages by the undertaking victim of an unlawful refusal to sell.

CA Paris, 23 June 2013, LawLex201300001042JBJ.

A decision of the Competition Authority that characterizes and sanctions the anticompetitive practices of the target companies establishes, pursuant to Article L. 481-2 of the Commercial Code, proof of the fraud committed by the transferring company, which certified in the transfer deed that its subsidiaries complied with competition law.

CA Paris, 6 April 2023, LawLex202300005053JBJ.

Paris, 24 February 2022, LawLex202200001185JBJ.

Cons. d'Et., 12 October 2020, LawLex202000002480JBJ.

The existence of a fault is established when the agreement has been characterized by a final decision of the Commission.

Judicial Court Rennes, 7 October 2019, LawLex201900001280JBJ.

T. com. Paris, 21 October 2024, No 2022039370

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