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

Directive No 2014/104 has made it easier to bring an action for damages for competitive harm by introducing a procedural regime that is more favorable to victims than that resulting from ordinary civil law.

Can victims of anticompetitive practices rely on evidence obtained in competition proceedings in damages suits? Or would this constitute disclosure of information concerning another party or third parties giving rise to liability within the meaning of Article L. 463-6 of the Commercial Code? The Court of Cassation would appear to limit the use of evidence covered by secrecy of investigations even after the closure of competition proceedings in case the evidence in question is required for the exercise of the rights of the defense of the party producing it, on whom the burden of establishing the need to produce the evidence rests . In other words, only the defendant in the competition proceedings should rely on that evidence. Such a restriction would appear to be both pointless and unjustified. Where the investigation has culminated in a decision by the Competition Authority, there is no longer any need for secrecy. Furthermore, all victims are entitled to obtain compensation for loss and especially in competition law where private damages actions are also regarded as means of enforcement of the competition rules. More tolerant than the Court of Cassation, the trial courts have accepted that victims can ask the Competition Authority to produce non-confidential versions of documents for use in damages actions . This possibility has also been accepted with regard to evidence in a commitments procedure able to help the claimant to assert his rights . Going even further, the same court held that the communication of evidence does not constitute disclosure within the meaning of Article L. 463-6 insofar as it concerns the same parties as in the case before the Authority and the party demanding disclosure is aware of the evidence, especially when it is the source thereof . The Paris Court of Appeal has also held that the disclosure by the defendant in a damages suit of evidence obtained in the course of proceedings before the Competition Authority in a dispute with another operator does not constitute a breach of secrecy . The rule has been extended to the plaintiff producing documents from the Competition Authority's file which he lawfully holds, where they are necessary for the success of the claim . The Ordinance of 9 March 2017 amended the wording of Article L. 463-6: it now exempts from prosecution under unlawful disclosure the production of any document in the context of a damages action under the conditions laid down in Articles L. 483-1 et seq., i.e. in compliance with the protection of business secrets and of documents produced in leniency or settlement procedures. In addition, under Article L. 483-8, a court can now order the disclosure or production of documents in the competition file when the procedure ends by a decision of the Competition Authority.

French law does not guarantee immunity in a civil action to an undertaking which has participated in a leniency program. Although obtaining total or partial exemption cannot protect a company against civil actions, the Competition Authority nonetheless strived to ensure that the appeal of the leniency program was not weakened by the development of private actions. Article L. 462-3 of the Commercial Code allowed the Authority to provide to any court hearing a damages claim with the evidence in its possession, although the Authority could refuse such a request. Also, a commercial court hearing an action for damages was able to instruct the Competition Authority to share evidence obtained in a leniency application . In order to preserve the efficiency of public enforcement over private enforcement, the legislature has amended Article L. 462-3 to expressly exclude from disclosure documents obtained in the context of leniency proceedings or documents that the parties to the proceedings already have at their disposal. That provision allowed a company claiming to be the victim of anticompetitive practices to disclose to the court evidence from the competition file it had in its possession without incurring a sanction under Article L. 463-6 of the Commercial Code on the proviso that it could prove that such disclosure was necessary for the defense of its rights . New Article L. 483-5 prohibits the court from ordering the disclosure or the production of evidence in the leniency or settlement procedure and - if a party purports to use it - requires the court to strike it from the record. Nevertheless, the judge may request disclosure from a party or the Competition Authority of documents allegedly covered by this prohibition to ensure personally, without the presence of the parties, that they indeed originate from a leniency or settlement procedure .

Furthermore, when a party claims that a document is covered by business secrecy, the judge hears the testimony in camera, or may, ex parte, limit the disclosure or the production of the exhibit to some of its parts, restrict access to that evidence and adapt the reasoning of its decision to the requirements of the protection of business secret, without prejudice to the exercise of the rights of the defense  . The application review procedure for the production of documents covered by the obligation of professional secrecy is governed by Articles R. 483-2 to R. 483-10 of the Commercial Code, introduced by the Decree of 9 March 2017. According to those provisions, the court hears the party in possession of the evidence, which must have provided an integral confidential version, a non-confidential version and a summary as well as a brief specifying, for each document or part of the document in question, why it is subject to business secrecy. The court orders the disclosure or the production of the integral document if it considers that it is not of such a nature as to infringe business secrecy and refuses disclosure if it is. When it considers that disclosure is likely to infringe business secrecy but that it is necessary to resolve the dispute or for the exercise of the rights of the defense, the court may order disclosure under such terms as it may see fit . A decision to dismiss a request for disclosure is only appealable with an appeal against the decision on the merits. The decision ordering disclosure may be subject to an action for annulment or for the partial setting aside of the ruling before the first president of the Paris Court of Appeal  .

To ensure the effectiveness of the albeit meager right of disclosure granted to claimants in damages actions, new Article R. 483-14 stemming from the Decree of 9 March 2017 provides for a fine of up to EUR 10,000 for any person refusing to comply with an injunction to disclose, destroying the relevant evidence, or failing to comply with the obligations imposed by a court injunction protecting confidential information.

Lastly, the provision on evidence arising from the decree is not intended to facilitate frivolous suits. A plaintiff was ordered to pay a civil fine of EUR 3,000 for culpable irresponsibility (légèreté blâmable) and bad faith, and EUR 20,000 in damages to the defendant for filing a claim against a competitor for compensation for alleged predatory pricing practices and disparagement, whereas it had no evidence in support thereof66, and for having pursued the action pending a possible investigation report from the DGCCRF .

By virtue of Article L. 481-9, all the undertakings having contributed to an infringement of competition law are jointly and severally liable for the injury caused to the claimant . In their internal relations, those undertakings share liability in proportion to the seriousness of their respective breaches and their role in the causation of the injury. The rule on joint and several liability does not apply to SMEs within the meaning of Article 51 of the LME Law if three conditions are met: i) their market share on the relevant market was less than 5 % for the whole duration of the anticompetitive practice; (ii) the application of Article L. 481-9 could  irretrievably jeopardize their economic viability and would cause their assets to lose all  their value and iii) they are not the instigators of the anticompetitive practice, have not forced others to participate and have not previously committed such a practice as established by a decision of a competition authority or a court of appeal . 

Likewise, beneficiaries of immunity are only liable in respect of their direct or indirect co-contractors and, with respect to other injured parties, only where full compensation cannot be obtained from the other undertakings involved in the offense  . In addition, the amount of their contribution may not exceed the amount of the injury that the offense has caused to their direct or indirect co-contractors  .

Where the claimant settles the claim with one of the joint debtors, Article L. 481-13 provides that it may only claim from the liable parties the amount of its loss minus the share attributable to the party having settled. The remaining debtors are also precluded from demanding that the party having settled with the victim must contribute to the damages they have paid.

The concept of undertaking that prevails for the imposition of a fine also applies to claims for damages for harm resulting from the sanctioned practices . Consequently, a parent company may be prosecuted even if it did not personally participate in the offending conduct . In the same way, a legal entity that managed the undertaking's operations is liable in damages to pay for the harm caused by an abuse of a dominant position if it continues to exist in law, even if it transferred the human and material resources that contributed to the infringement under an asset transfer agreement, and if this agreement only excluded the transfer of the burden of paying the fine imposed by the Competition Authority .

Finally, according to the administrative judge, companies which are members of a cartel cannot escape their liability on the ground that they have no legal connection with the plaintiff in the action. Indeed, they can be held responsible for the umbrella effect caused by the practices,i.e. the inflationary effect on the prices of undertakings external to the cartel with which the applicant has traded . Similarly, a person with whom the public authority did not contract, but whose involvement in the practices affected the procurement process, may be held liable before the administrative court .

The Paris Commercial Court has held that a court hearing an action for damages for anticompetitive practices must stay the proceedings until the Competition Authority's decision has become final  . Such an obligation is only conceivable in the case of a follow-on action, which allows the plaintiffs to benefit from a presumption of liability in the event of a conviction, and cannot be extended to a stand-alone action, which has the disadvantage of imposing on them the burden of proof of liability . An application for a stay of enforcement in an action for damages by the victim of anticompetitive practices is also not justified where the Competition Authority, the Paris Court of Appeal and the Court of Cassation have ruled on the existence of the infringement and the appeal pending before the Court of Cassation cannot, in the absence of a review of the facts, influence the outcome of the dispute . Such is not the case where the action for damages concerns practices judged to be anticompetitive by a decision of the European Commission subject to an action for annulment before the EU General Court , unless the action was brought by the only member of the cartel who refused to settle and against whom the victim did not bring proceedings, in which case the decision of the Commission with respect to the other participants who settled is final .

Like Article 2224 of the Civil Code, new Article L. 482-1 of the Commercial Code sets the limitation period for damages actions at five years. According to it, the limitation period begins to run from the day the claimant knew or ought to have known in a cumulatively: (i) of the behavior or acts attributed to a natural or legal person forming an undertaking or an organization within the meaning of Article L. 464-2 and the fact they constitute an infringement of competition law ; (ii) of the fact that the infringement of competition law caused harm to the claimant; and (iii) the identity of one of the infringing parties. 

The Administrative Court has ruled that the limitation period begins to run only from the date of the decision of the Competition Authority  informing the victim of the facts committed by the perpetrator of the anticompetitive behavior  and not that of the first steps taken by the investigating services  or from the date the proceedings are initiated, which, although it reveals the existence of an infringement, does not reveal the identity of the offenders, how the cartel operated or its geographical and temporal dimension . Similarly, knowledge of pre-existing and separate restrictive agreements or of the cartel in question , or the fact that the victim instigated the referral  or actively participated in the proceedings , cannot be invoked to bring forward the starting date of the statute of limitations. The fact that the victim sued the perpetrator of the practices several years before the Competition Authority's decision does not demonstrate that he had precise knowledge of the practices before the decision was handed down, since the referral was based on grounds other than those adopted by the Authority, and the decision brought to light several factors unknown to the victim . On the other hand, the undertaking that took part in the practices must act within five years of ceasing to do so, when this date is prior to that of the Authority's decision . The five-year period also applies to a recourse action brought by a company against another co-participant in the agreement: in this case, it runs from the day proceedings were brought by one of the victims of practice .

The limitation period does not start to run until the anticompetitive practice has ceased. It also does not begin running in relation to the victims of the beneficiary of total immunity from fines under a leniency procedure until they have been able to bring action against the perpetrators of the anticompetitive practice other than that leniency beneficiary.

The statute of limitations can be interrupted by the application to the courts, even applications for interim relief  or even before a court lacking jurisdiction . It is also validly interrupted by an application filed with the registry of the court, including in respect of a company established in Switzerland to which the application has not been notified in the form prescribed by international conventions . However, until the Hamon Law, it was settled case law that in the context of competition proceedings, referral to the Competition Authority was not identified with a summons likely to suspend the limitation period of an action for damages brought before the civil court, since the two actions were necessarily distinct . The Hamon Law of 17 March 2014 sought to radically amend this classic rule. Amended Article L. 462-7 thus provided that “the initiation of proceedings before the Competition Authority, a national competition authority of another EU Member State or the European Commission interrupts the limitation period of the civil action”, it being specified that “the interruption resulting from the initiation of these proceedings produces its effects until the date on which the decision of those authorities or, in the event of an appeal, of the competent court is final” . Since the Ordinance of 9 March 2017 however, interruption of the limitation period applies both to civil actions and actions for damages brought before an administrative court on the basis of Article L. 481-1 and that it may arise from “any act related to the investigation, the finding and the sanction of infringements” by the Competition Authority, a national competition authority of another Member State of the European Union or the European Commission” . Interruption now produces its effects until the date on which the decision of the relevant competition authority or appeal court can no longer be the subject of an ordinary appeal which would appear to exclude appeals to the Court of Cassation. The Paris Court of Appeal recalled that this article provides for a mechanism that interrupts the limitation period for actions seeking damages for anticompetitive harm, and not a mechanism that defers the starting point of the limitation period for actions based on anticompetitive practices to the date on which the decision of the competent competition authority or appellate court can no longer be challenged by ordinary means of appeal .

The filing of an action in court, in the event of a withdrawal of proceedings not arising from the fact that the court seized does not have jurisdiction, or an action for damages for non-material loss, cannot have the effect of interrupting the limitation period for an action for damages for material loss .

Lastly, according to the Paris Court of Appeal, the statute of limitations set out in Article L. 482-1 of the Commercial Code applies ratione materiae only to anticompetitive practices, and not to breaches of European obligations concerning State aid. Consequently, in this area, the limitation period for an action for compensation for harm resulting from the granting of unlawful State aid to a competitor can only begin to run from the date of the Commission decision classifying the aid as incompatible with the internal market, even if the claimant was himself the originator of the complaint, lodged ten years earlier .

Cass. com., 19 January 2010, LawLex201000000136JBJ, in respect of the disclosure in a civil trial of information subject to the secrecy of investigations before the Competition Authority.

T. com., Paris, 24 August 2011, LawLex201100001427JBJ.

T. com. Paris, 25 September 2017, LawLex201800000908JBJ, holding that the communication to the defendant in the action for damages of an economic study cited by the plaintiff in his writ of summons may be reserved, for its integral version, to the lawyers and economic experts designated by the defendant, and subject to the production of a confidentiality undertaking by the latter.

CA Paris, 13 March 2019, LawLex201900000323JBJ.

Cf. prior to transposition, Cass. com., 15 November 2011, LawLex201100001819JBJ, holding that a group of companies may not be declared liable for an anticompetitive practice sanctioned by the European competition authorities, when it is devoid of its own legal personality. See also CAA Nantes, 27 April 2018, LawLex201800000649JBJ, holding that the four undertakings that were members of a cartel must be ordered to pay damages to the local authority even if the latter contracted with only one of them and if some of them did not bid on the contracts in question. They must be ordered jointly and severally to compensate the victim's loss, even if each party's fault is different or not of the same degree of gravity; Cass. com., 7 June 2023, LawLex202300007524JBJ, emphasizing that the amount of the contribution to the debt of each co-perpetrator of the damage cannot be assessed with regard to the amounts of the fines imposed on them pursuant to Article L. 462-8, paragraph 2, of the Commercial Code, since those sanctions are not based solely on the severity of the behavior of the perpetrators of anticompetitive practices.

Cass. com. 20 March 2024, LawLex202400002483JBJ.

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

Cass. com. 20 March 2024, LawLex202400002483JBJ, cited above.

T. com. Paris, 16 March 2012, LawLex201200000493JBJ.

CAA Paris, 13 June 2019, LawLex201900001318JBJ; Also see T. com. Lyon, 27 October 2022, LawLex202200010136JBJ, cited above.

Cons. d'Et., 27 March 2020, LawLex202000000377JBJ and LawLex202000000383JBJ.

T. com. Paris, 11 May 2012, LawLex201200000892JBJ.

But see CA Paris, 2 December 2022, LawLex202200011021JBJ, considering that, in the interests of the proper administration of justice, it is appropriate to order a stay of proceedings on a claim for damages based on abuse of a dominant position when the Competition Authority is simultaneously seized of the practice.

T. com. Paris, 17 December 2013, LawLex201300001890JBJ.

TGI Rennes, 17 October 2013, LawLex201300001809JBJ.

CA Paris, 23 October 2020, LawLex202000002830JBJ.

See TA Caen, 6 April 2017, LawLex201700000692JBJ and LawLex201700000693JBJ.

See, for the decisions of the Commission, Cass. com, 31 March 2021, LawLex202100000985JBJ. See also, CA Paris, 1 June 2023, LawLex202300007628JBJ, specifying that the action must be initiated within five years of publication of the press release announcing the judgment, provided that the press release contains as much information as the summary subsequently published in the OJEU.

CAA Nantes, 10 May 2017, LawLex201700002012JBJ and LawLex201700002016JBJ; CAA Paris, 13 June 2019, LawLex201900001318JBJ, date of Commission decision; T. com. Paris, 23 September 2019, LawLex201900001326JBJ and Cons. d'Et., 22 November 2019, LawLex201900001447JBJ, both ruling out earlier dates where only when only suspicion could be raised; ; Cons. d'Et., 27 March 2020, LawLex202000000378JBJ; CA Nancy, 22 September 2022, LawLex202200007573JBJ; Cons. d'Et., 9 May 2023, LawLex202300006341JBJ and LawLex202300006371JBJ; 17 May 2023, LawLex202300007174JBJ.

T. com. Paris, 8 November 2011, LawLex201100001744JBJ.

T. com. Paris, 4 November 2019, LawLex202100000253JBJ; CA Paris, 14 April 2021, LawLex202100001149JBJ,

CA Paris, 6 February 2019, LawLex201900000209JBJ,

Cass. com. 27 January 2021, LawLex202100000275JBJ.

CA Paris, 17 June 2020, LawLex202000000538JBJ.

Cass. com. 30 August 2023, LawLex202300010754JBJ, overruling the position adopted by T. com. Paris, 1 October 2019, LawLex201900001310JBJ, in the same case.

T. com. Paris, 25 November 2024, LawLex202400009170JBJ.

CA Paris, 14 September 2022, LawLex202200007365JBJ.

TGI Rennes, 7 October 2019, LawLex201900001280JBJ.

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

CA Paris, 10 May 2017, LawLex201700000854JBJ.

TA Lyon, 18 July 2024, LawLex202400005694JBJ.

TGI Paris, 17 December 2013, LawLex201300001829JBJ.

See CA Paris, 6 March 2019, LawLex201900000300JBJ: a decision on interim measures cannot suffice to constitute the basis of effective knowledge of anticompetitive practices by victims, such as to enable them to take legal action to obtain damages; only a decision on the merits can serve as the starting point for the five-year statute of limitations.

See, for a refusal to retroactively apply the statute, TA Paris, July 29, 2019, LawLex201900000968JBJ; T. com. CA Paris, 23 January 2023, LawLex202300001271JBJ.

CA Paris, 22 January 2025, LawLex202500000839JBJ.

TA Paris, 29 July 2019, LawLex201900000968JBJ, cited above.

CA Paris, 18 September 2024, LawLex202400006724JBJ.

CA Paris, 20 December 2017, LawLex201700002135JBJ.

T. com. Paris, 11 April 2012, LawLex201300000146JBJ.

CA Paris, 24 September 2014, LawLex201400000991JBJ; T. com. Paris, 30 March 2015, LawLex201500000456JBJ.

Commercial Code, Article L. 462-3, as amended.

Commercial Code, Article L. 483-2. For an illustration, see T. com. CA Paris, 28 January 2019, LawLex202100000196JBJ, specifying that documents, even relating to contracts awarded several years previously, may be considered confidential and fall under the protection of trade secrets due to their strategic nature for the competitor requesting them.

520. Procedure