Competition News May 2017

Author:Ms Emmanuelle van den Broucke

Transposition by France of the European Directive on compensating harm caused by anticompetitive practices

On March 9, 2017, France adopted, a little late, the texts transposing the directive of November 26, 2014, whose purpose was to facilitate compensating the harm caused to the victims of anticompetitive practices.

Although French law was already largely in line with the directive, the transposition texts add a few useful novelties for these actions for damages for anticompetitive practices.

Scope: France has chosen not to limit the scope of the action to unlawful agreements and abuses of a dominant position but to open it to any and all breaches of European or domestic competition law which include, for example, the abuse of economic dependency or the practice of abusively low prices.

The offense is presumed: when a breach of competition law has been committed, the offense is presumed, and this presumption is irrebuttable in case of final sanction by the French Competition Authority or the European Commission. However, the presumption of offense is a simple presumption for a decision adopted by a competition authority of another Member State.

Principle of full compensation of the harm: the transposition also includes the principle of full compensation of the harm suffered by the victims of anticompetitive practices. Article L.481-3 of the French Commercial Code contains a non-exhaustive list of the harms open to compensation including, notably, lost opportunity and moral harm. Harm is presumed when several companies have agreed on prices to the detriment of other competitors. The action of direct purchasers is also facilitated since it is now up to the defendant to prove that the purchaser passed on the overcharge resulting from the anticompetitive practices to the indirect purchaser (consumers for example).

Joint liability of the parties to the unlawful agreement: all the companies which contributed to the same breach shall be jointly held liable to compensate the resulting harm. Then, the principle of allocation between them is that they contribute to the debt in proportion to the seriousness of their offense and their causal role. However, there are two exceptions: SME and beneficiaries of a leniency measure are not concerned by this principle of joint liability, subject to certain specific reservations, notably when full compensation cannot be obtained from the other companies involved.

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