EU Directive on actions for damages for infringement of
competition law : what changes are expected in France?
Pr. Philippe CORRUBLE
HEC Paris
Of Counsel, Ince & Co
November 20, 2015
Genova
1. French legal context. Why has private enforcement
played only a secondary role in France?
Punitive damages in common law jurisdictions
 Compared to “Direct, current and certain damage” under the Civil Code
provisions
 Integral but limited reparation
 Cass, Civ. 2è. October 28 1954
 Forum shopping
 Ambiguity of Competition Authorities on private enforcement: official
promotion but fear for possible consequences on leniency and settlement
procedures
 In practice, actions for damages could be brought directly before the Civil
Courts without a decision of the Competition Authority
 In practice, very rare
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Why has private enforcement played only a secondary role
in France?
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Only eight Courts have jurisdiction on private enforcement of competition rules
The Judge even has to raise automatically this rule of law and order the action be
dismissed
Mandatory conciliation clauses in many contracts cause delay or even have the
consequence that a civil action is unaccaptable before a Court
Durations of the procedures and deadlines (extensions) of appeal, too long,
dissuade from acting
The counterfactual scenario, necessary for the identification of the amount of the
damage, is hardly compatible with the legal requirement of certain damage
Private settlements occur out of Court
However, some declarations of General Counsels of large international firms
indicate a new trend
A change in mentalities?
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“The Directive fits in Almunia’s legacy of encouraging those that have
suffered loss from cartel conduct to turn to the Courts for compensation.
But beyond Almunia’s encouragements, I think the main reason private
enforcement has increased in the past few years is that mentalities have
changed at board level. Today, large companies know much better than twothree years ago that if they are found guilty of cartel activity the issue of
compensation will be on the table.” Former General Counsel of Michelin
2. The introduction of class actions in France in March
2014: will this change the picture?
Introduction of class action by the “Hamon Law” in March 2014
Commercial Code, Art 423-1:
“An association of representative consumer protection at the national level
and approved in application of the article L. 411-1 can act in front of a civil
jurisdiction to obtain the repair of individual damages undergone by consumers placed
in a similar or identical situation and having for common cause a breach of one or
several same professionals in their legal or contractual obligations :
 1 ° On the occasion of the sale of the properties or the supply of services;
2 ° Or when these damages result from practices anticompetitive with
the sense of the title II of the book IV of the commercial Code or from articles
101 and 102 of the Treaty on the functioning of the European Union.”
Impact of the recent introduction of class action in the
French legislation
Provisions of art. L. 423-17 of the Commerce Code plan an irrefragable
assumption in favor of Competition Authority’s decisions for class actions
introduced by associations of consumers
 However, a judgment on a class action introduced before a Court cannot be
rendered before the corresponding NCA‘s decision is definitive
 Even if this does not mean that the class action cannot be introduced in
Court in parallel, by the association of consumers, during or even before the
proceedings at the NCA take place
 Here again, durations of the procedures and deadlines of appeal, too long,
may dissuade from acting
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Class actions in France: 6 class actions only have been introduced
since the adoption of the law
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1 led to a private settlement: billing of spending bound to the maintenance of the
device of remote monitoring of elevators
1 against a real estate firm, concerning billing of extra-costs for expedition of bills
1 against Axa and AGIPI concerning life insurance contracts subscribed until 1995
1 against the social lessor Real estate 3F concerning the clause concerning a 2 %
penalty chargeable to the late tenant of all or part of the payment of the rent,
loads(responsibilities) and possibly some supplement of rent of solidarity
1 against telecommunication operator SFR for misleading advertising on the cover
of its network
1 against a camping owner obliging owners of mobile homes to but a new mobile
home after 10 years… if they wanted to keep on renting their piece of land
Class actions in France: so what?
No judgement for the moment on any of these actions
 And, most important: no class action was introduced on the basis of an
anticompetitive practice since the adoption of the Law
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3. What changes are expected in France with the
implementation of the 2014/104/EU directive?
Transposition of the directive currently at the Ministry of Justice…
 Main areas in which changes could be expected
 3.1 Burden of proof
 3.2 Disclosure
 3.3 Effects of NCA decisions on civil Courts in France
 3.4 Passing on Defense
 3.5 Limitation
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3.1 Burden of proof – Quantification of the damage
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Reminder: no specific rules applicable to actions for competition damages.
General provisions apply, with the standard applicable in civil proceedings
Burden of proof on the plaintiff
Need to establish:
- Fault
- Damage
- Causal link between them
The Court of Appeal of Paris considered that a damage deduced inevitably
of an anticompetitive practice. CA Paris, 26 juin 2013, 12/04441
But what damage ? : quantification of the damage must be advanced by
plaintiff
Quantification of the damage : the obstacle of certainty
The damage must be direct, current and certain
 CA Paris, ch.5 July 2 2015
 Public tender launched by EDF
 Exchange of informations among tendering firms condemned by French
Competition Authority
 EDF had moved forward that its damage was equal to the difference
between the price for which they actually paid cables and price from which
they would have bought them if the suppliers had not exchanged
information on the tendered prices and if they had thus been in a situation
of full competition
 The Court of Appeal refuses to grant damages to EDF on its claim for
compensation for defect of proof of the undergone damage.
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The quantification of the damage and the issue of
certainty
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A well known problem: the counterfactual scenario and the notion of
« certain damage »
In the cable case, Magistrates may have been perturbated by diverging
conclusions of Economists
They prefered to abstain
As they did in the action in reparation of the damages in the lysine cartel,
CA Paris February 16 2011, confirmed by Court of cassation, com. May 12
2012
In some occasions it may (partly) work…
Orange Caraïbe condemened by the Competition Authority for agreement and abuse
of dominant position
 Action introduced by Outremer Telecom before the Tribunal of Commerce in Paris
 Tribunal refused to grant indemnification in three of the five damages alleged by OT
 But accepted for the remaining two
 One of them consisting in a loss of profit « gain manqué » caused by fidelity offers
launched by the domining firm
 NB: some of these fidelity offers had not been condemned by the Competition
Authority because no statement of objection had been sent
 Damage based on the % of consumers kept by the dominant player because of the
fidelity program (30%) x by the brut margin the plaintiff would have made on these
lost deals.TC Paris, March 16 2015, SAS Outremer Telecom c/SA Orange Caraïbe
And even in unexpected circumstances
DKT case
 A rare illustration where action in Court follows a decision not of
condemnation but where commitments had been imposed by the
Competition Authority
 Plaintiff introduced an action before the TC Paris, complaining for an
eviction of the market and seeking damages
 Tribunal relied significantly on the commitment decision and infered from
the dominant position and the practices that a damage deduced inevitably
 Damages granted (350.000 €) supposed to compensate the loss of turnover,
loss of a chance to pass contract, and the pecuniary damage resulting ofg the
loss of reputation
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So what?
Does the Directive introduce a substantial change in this domain?
 Presumption of damage in case of an unlawful agreement. Art. 17.2
 Competition Authorities to provide assistance to Courts for the
quantification of the damage
 The Directive does not set any further guidelines to the quantification of
harm
 Back to the difficult issue of quantification of the damages
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3.2 Disclosure
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Current legal situation in France
Art 145, Code of Civil Proceedings:
“If there is a motive justifiable to preserve or to establish before any trial
the proof of facts on which the solution of a dispute could depend, the
legally eligible measures of instruction can be ordered at the request of
everything interested, at request or in emergency proceeding.”
3.2 Disclosure
Article L 462-3, Commerce Code
 “The Competition Authority can be consulted by the jurisdictions on the
anticompetitive practices raised in the affairs with which they are seized…
 …The Competition Authority can transmit any element which it detains
concerning the concerned anticompetitive practices, with the exception of
parts elaborated or collected in conformance with provisions of the article
L. 464-2 (IV), to any jurisdiction which consults it or asks to produce parts.”
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3.2 Disclosure
Cass. com. January 19 2010 Semavem v JVC
 “the principle of the respect for rights of defence justifies the disclosure, in a civil
trial, of information covered by the investigation secrecy in front of the
Competition Council become the Authority of the competition, only if this
disclosure, incriminated by the article L. 463-6 of the commercial law, is necessary
for the exercise of these rights”
 It is for the plaintiff to establish the relevance of the information covered by the
investigation secrecy
 Proportionality test which is close to provisions of article 5 of the Directive:
“upon request of a claimant who has presented a reasoned justification containing
reasonably available facts and evidence sufficient to support the plausibility of its
claim for damages, national courts are able to order the defendant or a third party
to disclose relevant evidence which lies in their control, subject to the conditions
set out in this Chapter. Member States shall ensure that national courts are able,
upon request of the defendant, to order the claimant or a third party to disclose
relevant evidence.”
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3.2 Disclosure
Concerning access to information held by the Competition Authority, the
Directive marks a retreat from the EU case law (ECJ, 14 juin 2011, Pfeiderer,
C-360/09 and 6 juin 2013, Donau Chemie, C-536/11, which favors access to
the information by virtue of the principle of effectiveness of EU law, once
the Judge has balanced the interests at stake
 But the directive improves the access to these informations if one compares
with the current French state of the art, since every part of the file should
be made available with two exceptions:
- informations transmitted by firms in leniency proceedings
- informations transmitted in settlement proceedings
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3.3 Effects of NCA decisions on civil Courts in France
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NCA decision is a decision by an (independant) administrative body
Not a Judgement
TGI Paris, December 17 2013: « The decision of the Competition Authority has no
authority of res judicata and does not bind the Judge judge even though he is
seized with the dispute of the compensation of anticompetitive practices”
The contrary is true only, as a matter of principle, if victims were to introduce a
class action
Apart from this case, the Judge may only be influenced by the decision of the
Competition Authority
Hard to predict
For sure, a substantial change with provisions of art. 9 of the EU 2014/104
Directive
3.4 Passing-on defense
Passing-on defense is introduced in the provisions of art. 13 of the Directive
 This passing-on defense is already available under French Law
 However, under French Law, the burden of prooving that the lies on the
claimant. Cass. com. May 15 2012
 The burden of proving that the overcharge was indeed passed on lies with
the infringer, who can require disclosure from the claimant or third parties
in this context
 A substantial change : rebuttable presumption of causal link
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Passing-on envisaged as the basis of a claim of the indirect
purchaser
In addition to its codification as a potential defense, passing-on may also
form the basis of a claim
 The Directive clarifies that anyone who has suffered harm, whether a direct
or indirect purchaser, is entitled to full compensation. While stipulating that
the burden of proof for the existence and scope of the pass-on lies with the
indirect purchaser, the Directive contains a presumption in its favor:
 the indirect purchaser needs only to prove that an infringement of
competition law resulted in an overcharge for the direct purchaser and that
he purchased goods that were the subject of the infringement
 No case of this kind in France brought to my knowledge
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3.5 Limitation
The Directive harmonizes time limits by requiring that claims must not be
time-barred for at least five years after the claimant knows or can
reasonably be expected to know the relevant circumstance
 This is indeed close to the provisions of art. 2224 of the French Civil Code
 The Directive also specifies that the limitation period shall not begin to run
before the infringement has ceased
 Most importantly, the limitation period will be “suspended” when antitrust
authorities initiate investigations regarding those infringements to which the
damages claim relates
 Art. L. 462-7 of the French Commercial Code opted for the “interruptive”
effect of prescription until a definitve decision is rendered
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