NEWS

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14-12-2017

 

Ordinance No. 2017-303 and Decree No. 2017-305 of March 9, 2017 relating to actions for damages resulting from anti-competitive practices

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By order no. 2017-303 dated March 9, 2017 and implementing decree no. 2017-305 of the same date, France transposed directive 2014/104 of November 26, 2014 relating to certain rules governing actions in damages under national law for infringements of the competition law provisions of the Member States and of the European Union.

 

As a reminder, the directive of November 26, 2014 pursues a triple objective :

 

• establish a balance between the right of victims to obtain full compensation for their harm related to anti-competitive practices and the effectiveness of procedures for sanctioning these practices by the competition authorities ;

 

• offer equivalent protection to any victim of an anti-competitive practice by harmonizing within the Member States  of the European Union the rules governing actions  for damages because of these anti-competitive practices;

 

• encourage the introduction of these compensatory actions making it possible to effectively sanction the companies responsible for anti-competitive practices by offering victims a renewed and adapted legal framework.

 

The ordinance entered into force the day after its publication in the Official Journal, i.e. March 11, 2017. However, certain provisions relating to the communication of documents are retroactively applied to proceedings brought before the administrative and judicial courts from December 26, 2014. The decree, the purpose of which is to settle points of procedure, is also applicable retroactively to proceedings instituted on or after December 26, 2014.

 

The Ministry of Justice quickly issued a circular on March 23, 2017 on how the courts should interpret these texts containing 14 technical sheets presenting the main measures.

 

The operator who is the victim of anti-competitive practices, whether agreements, abuse of a dominant position, vertical restrictions of competition, must seek compensation for his prejudice on the basis of tort and has, under ordinary law, the responsibility to prove a fault attributable to the author of the anti-competitive practice, his prejudice and the link between the fault and his prejudice. In the case of anti-competitive practices that are complex or difficult to establish, the application of ordinary law resulted in practice in the rejection of claims for damages.

 

The ordinance and decree of March 9, 2017 create a specific compensation procedure that greatly facilitates the implementation of compensation actions for victims of anti-competitive practices.

 

Thus, Article L.481-2 of the Commercial Code henceforth presumes irrefutably the existence of a fault with regard to the victim when the existence and attribution of an anti-competitive practice to his have been established by a final decision of one of the national competition authorities of the Member States, of one of the appeal courts (in France, this is the Paris Court of Appeal) or of the Commission European.

 

In terms of agreement, the anti-competitive practice is now presumed to cause harm to the victim. However, this presumption does not apply to other anti-competitive practices.

 

A legal solidarity is also established between the various perpetrators of the anti-competitive practice, allowing the victim to claim the entire damage from any of the co-perpetrators, except the one who has benefited from a measure of leniency.

 

In addition, the ordinance puts in place new mechanisms for access to evidence likely to support such actions for damages by providing in particular the possibility of questioning the Competition Authority in charge of examining the procedure for sanctioning the practice anti-competitive behavior to gain access to his file.

 

Finally, it should be noted that taking into account the provisions of Directive 2016/943 of June 8, 2016 on the protection of business secrecy, which must be transposed into French law by June 9, 2018 at the latest, it has been provided that the court seised of compensation proceedings due to anti-competitive practices has the possibility of restricting the communication or production of documents if he considers that there is a breach of business secrecy.