Competition News January 2017

Author:Ms Emmanuelle van den Broucke

New decisions in France with regard to compensating the prejudice suffered by victims of anti-competitive practices

Any person who claims to be the victim of anti-competitive practices and wishes to seek compensation for the prejudice they consider to have suffered must prove before the civil courts that the three conditions of third party liability under general laws -negligence, competitive harm, and direct causal link- have been met.

In these type of proceedings, it is often the characterization and assessment of the competitive harm which proves to be the most delicate and complex stage, notably when the person who suffered from anti-competitive practices is a competitor. To quantify the loss of earnings of a competitor who is victim of an anti-competitive practice, it is necessary to compare his real position with the hypothetical situation he would be in if the offence had not been committed.

The Paris Court of Appeal tried its hand at this difficult task in its two decisions of December 7 and 14, 2016.

In the first case, Aviscom, a company operating a website of obituary notices and condolences, suffered from the anti-competitive behavior of the newspaper La Montagne. The aforementioned newspaper, along with other newspapers of a competing company, mentioned only the reference of the website of this competing company in the death announcements it published; furthermore, it imposed undertakers a joint publication of the death announcement in the press and on the internet.

Aviscom argued before the Court of Appeal that the material prejudice it suffered was caused by the loss of opportunities to capture the market of obituary notices, the loss of its entire investments and the time needed to recapture the market. The Court of Appeal did not agree to take these elements into account and considered the loss of opportunities to capture additional market shares to be the only prejudice suffered in direct connection with the prohibited practice. However, according to the Court of Appeal, the actual lost opportunities cannot be assessed from this "loss of opportunities" and in the case at hand, Aviscom has not provided any elements that establish its market shares in the affected area since the end of the coupled sales practice. The Court of Appeal finally granted Aviscom a mere €5,000 for the competitive damage suffered instead of the €50,000 initially awarded by the Lyon Commercial Court.

In the second case, Switch, an online travel agent...

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