French Competition Law provides a comprehensive review of the French rules relating to competition: restrictive agreements, commercial negotiation, abuses of a dominant position, procedure and merger control.

French Competition Law

The harm is assessed according to the precepts of ordinary law . The courts have a discretionary power of assessment  and do not have to detail the various elements of the harm or justify the assessment criteria used . In any case harm resulting from acts of unfair competition cannot be evaluated on a lump-sum basis where there is insufficient data to make the assessment . 
According to the Court  …

Evaluation of harm

The harm is assessed according to the precepts of ordinary law . The courts have a discretionary power of assessment  and do not have to detail the various elements of the harm or justify the assessment criteria used . In any case harm resulting from acts of unfair competition cannot be evaluated on a lump-sum basis where there is insufficient data to make the assessment . 

According to the Court of Cassation , for the evaluation of the harm caused by unfair competition, it is necessary to distinguish acts “intended to lure away or appropriate customers or disrupt the competitor's business” which lead to negative economic consequences for the victim (loss of profit, harm suffered, loss of opportunity) and which “can be fairly easily demonstrated”, from acts which, by enabling the offender to avoid an obligatory expense, such as in matters of parasitism or non-compliance with regulations, can confer “an unfair competitive advantage, the effects of which, in terms of economic disturbance, are difficult to quantify with the available evidence, except when incurring disproportionate expenditure in the light of the interests at stake”. In the latter case,"it is accepted that compensation for harm suffered can be assessed by taking into account the unfair advantage granted to the party responsible for the acts of unfair competition to the detriment of its competitors, adjusted in proportion to the respective business volumes of the parties affected by those acts" .

As such evaluations are not always easy, the courts are free to call upon expert witnesses  or to base their assessment on specific studies/reports .  In the event of multiple actions for infringement and unfair competition, the amount of damages intended to compensate for the infringement of an intellectual property right is determined in accordance with the criteria set forth in Article 2 of Law No 2014-315 of 11 May 2014, without those provisions applying to the sums awarded as compensation for acts of unfair competition . The harm is assessed on the day the judgment is given. In effect, even if the right for a victim to obtain compensation for the damage suffered exists from the moment the damage is caused, evaluation of that damage must be made at the time of the court ruling, where the bringing together under the same ownership of the assets of the victim of acts of customer appropriation and the assets of the legal person that benefited from them has necessarily influenced the nature and the amount of the loss claimed by their common beneficiary .

In making their assessment, judges must take into account not only the loss suffered or lost earnings , but also the effect of the unfair conduct on the victim's future operations. They look at long-term consequences i.e. the period within which the unfair act is likely to produce effects  When several persons or entities have participated in the unfair conduct, judges must define the portion of damages to be paid by each in compensation .

Thus, an undertaking and its manager cannot both be ordered to pay EUR 15,000 for customer poaching without determining the specific damage respectively caused by each of them . Compensation for the damage must be in full, without any loss or profit for either party. A court ordering the publication of a decision must therefore stipulate the maximum cost thereof . The court cannot order the publication of the operative part of its ruling for acts of parasitism on the parties' websites without imposing a time-limit on such publication . The principle of full reparation prevents the court from pronouncing a general prohibition not specifically linked to the unfair acts committed , and prevents it from allocating the compensation awarded to the victim between the perpetrators according to whether their fault is contractual or tortious in nature . Reparation must restore, as precisely as possible, the competitive balance disrupted by the wrongful conduct, so that the victim of acts of unfair competition may propose a counterfactual method aimed at reconstructing the economic situation that would have prevailed in the absence of the disputed practices .

See Cass. com., 12 February 2020, LawLex202000000207JBJ., re-stating the key principles of civil damages.

For an example see Cass. com., 26 May 2004, LawLex200400001285JBJ, upholding the award of an identical sum for acts of IP infringement and distinct acts of unfair competition.

Cass. com., 23 March 1999, LawLex200200000974JBJ.

CA Versailles, 2 March 1989, LawLex200200001912JBJ; 26 September 1991, LawLex200200001788JBJ

Cass. com., 18 October 1994, LawLex200200001534JBJ.

Cass. com., 15 May 2012, LawLex201200000768JBJ.

Cass. com., 9 October 2012, LawLex201200002150JBJ.

Cass. 1re civ., 31 January 2018, LawLex201800000234JBJ.

Cass. com., 9 October 2012, LawLex201200002155JBJ, quashing the appeal judgment having rules prohibited, subject to penalties, the perpetrator of unfair and parasitic competition with regard to the manufacture and sale of heating panels carrying the plaintiff's trade mark, from making, importing, offering for sale, selling/stocking items of the same type as those marketed under the name of the victim, or any similar model. 

Cass. com., 27 April 2011, LawLex201100000864JBJ, overruling CA Paris, March 3, 2010, LawLex201100000925JBJ, having considered that the repair of the harm suffered by the victim of acts of unfair competition must take into account the wrongful acts both in contract and in tort.

CA Paris, 2 April 2025, LawLex202500002829JBJ.

Cass. com., 21 October 2014, LawLex201400001145JBJ. In addition, insofar as the Court of Appeal has justified the existence of one and the same harm for unfair and parasitic competition in its assessment that its discretionary evaluation of the amount of the harm cannot be called into question.

Cass. com., 23 November 2010, LawLex201100000654JBJ.

Cass. com., 12 February 2020, LawLex202000000207JBJ; 5 June 2024, LawLex202400004051JBJ: the case law interpretation conferred on Article 1382 (now 1240) of the Civil Code in the Cristal case, which only allows the amount of damages owed to the victim of acts of unfair or parasitic competition to be assessed by taking into consideration, in determining the extent of the harm caused by these acts, the undue advantage that the perpetrator has granted himself, is justified by the general interest objective of effectively compensating the victims of acts of unfair or parasitic competition when they encounter difficulties in proving their harm, and that the infringement of the property rights of the perpetrator of these acts, guaranteed by Article 2 of the Declaration of the Rights of Man and of the Citizen, is proportionate to that aim.

Since the development by an online platform of a service to put private individuals in contact with each other - some driving their own vehicles and others wishing to be transported - without regard to regulations, has unquestionably created a commercial disturbance for taxic drivers, by placing these occasional private drivers and the aforementioned platform in an abnormally favourable situation compared with taxis, it is appropriate to compensate for the prejudicial effects by taking into account the undue advantage resulting from this disruption of competition, by placing these occasional private drivers and the said platform in an abnormally favorable situation in relation to cabs, it is appropriate to compensate for the prejudicial effects by taking into consideration the undue advantage resulting from this breach of equality, namely the savings in charges made by a private driver using the disputed service, modulated in proportion to the respective business volumes of the parties, CA Paris, 4 October 2023, LawLex202300012371JBJ, adding that in order to assess the harm to the plaintiff drivers resulting from the development by the platform in question of a public transport service for hire, in breach of the regulations, it is appropriate to use the calculation method which consists of calculating the savings in charges that each complainant would have made, if he had benefited from the reduced rate of charges enjoyed by a driver, user of the offending service, this saving in charges then being related to the proportion of the commission received by the platform concerned on its drivers' journeys, i.e. 20%.

On the recourse to experts see Cass. com., 2 November 2011, LawLex201100000174JBJ, finding that the court cannot refuse to order an expert assessment in order to calculate the harm on the grounds that no fault has been established insofar as unfair behavior automatically gives rise to harm, even if non-material; Cass. 2e civ., 15 November 2012, LawLex201200002325JBJ, holding that a general investigatory measure, such as authorizing a court bailiff assisted by computer experts to compare the lists obtained during its investigations with those of the undertakings under investigation and to send to the plaintiffs a list of common data, thus bringing to their knowledge information about the defendants exceeding the limits of the dispute, is not legally admissible on the basis of Article 145 CPC.

For economic reports see CA Colmar, 13 May 1994, LawLex200200001572JBJ.

Cass. 1re civ., 3 May 2018, LawLex201800000661JBJ.

Cass. com., 3 February 2015, LawLex201500000159JBJ, overturning the judgment of the Court of Appeal which held that it did not matter that the undertaking which had been the victim of the misappropriation had subsequently been absorbed by the company which had also taken over the rights of the undertaking which had benefited from this misappropriation, on the grounds that the loss arises at the time when the fault was committed, even if it is only ascertained and quantified subsequently; 10 February 2021, LawLex202100000502JBJ, recalling that within the exercise of its discretion to assess the modalities of compensation for the loss the Court of Appeal, after having fixed the amount of damages intended to compensate for the loss of business and rent as well as the moral harm suffered by the complainant undertakings, may refuse to order the requested prohibition of business activities and demolition on the grounds that it is necessary to take into account the actual loss suffered and the principle of freedom to do business and consider that, almost twenty years after the non-compete clause was signed and eight years after the beginning of the illegal activity, such measures would be disproportionate.

French Competition Law

30. Evaluation of harm

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

30. Evaluation of harm

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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