Companies often associate competition rules with public enforcement. However, competition law can also be a source of compensation. The new French Order and Decree, which together implement Directive 2014/104/EU on actions for damages for infringements of competition law provisions, simplify the task victims of infringements of competition law face when they claim damages by creating a number of presumptions in their favour.
Competition authorities, including the French Competition Authority (the FCA), impose increasingly heavy fines on companies that infringe competition rules. In parallel to this, private claims aimed at repairing the harm suffered by the victims of anti-competitive practices exist, but until now such claims have not been made to the extent possible.
However, a framework for private claims for damages in France has now been provided by Order No. 2017-303 of 9 March 2017 (the Order) and its supplemental decree (the Decree).
These rules are aimed at increasing the efficiency of private enforcement of competition rules and, therefore, ensuring full compensation of the victims of anti-competitive practices. However, they also try to set an appropriate balance between such private enforcement and effective public enforcement of competition law by competition authorities.
Proof of infringement
Anti-competitive practices are irrefutably presumed to be established for the purposes of an action for damages when they are found to exist by a final decision of the FCA (i.e., the decision has been confirmed by the Paris Court of Appeal or has not been subject to a request for annulment) or by the EU Commission.
Decisions of other Member States' competition authorities can be used as prima facie evidence of anti-competitive behaviour.
It is presumed under this regime that cartel infringements cause harm, although this presumption is rebuttable by the cartelists.
The Order also states that the harm suffered by a victim can include (i) any loss incurred (mainly as a result of overcharges); (ii) any loss of profit; (iii) any loss of opportunity; and (iv) any non-financial loss.
Damages are assessed on the day of the decision and must take into account all circumstances affecting the value of the loss suffered. It includes the time that has elapsed since the loss occurred and, therefore, any interest due since then.
The sole provision on the quantification of damages is provided by the Decree. French courts may ask for the FCA's opinion on such quantification;...