Plaintiff and French Competition Law
By Jean-Louis Fourgoux & Leyla Djavadi
Posted: 3rd September 2015 10:05Under the French jurisdictional system, a victim of anticompetitive practices can lodge a complaint before:
- the French Competition Authority (“l’Autorité de la Concurrence” AdlC),
- the commercial courts,
- the administrative courts, and
- the French General Directorate for Competition, Consumer Affairs and Fraud Control (“DGCCRF”) in case of "Local-anticompetitive practices”.
The French Competition Authority
The AdlC deals with anticompetitive practices (cartels, abuses of dominant position and abuses of economic dependency). If the plaintiff has enough evidence of competition law infringement, the threat of a complaint to the AdlC is a good way to protect the interests of the victim.
If the plaintiff can prove an emergency situation requiring a faster procedure, the AdlC may impose interim measures, prior to the adoption of a decision on the merits of the case. Decision imposing interim measures may be adopted within three to four months after the complaint. This type of measure can be justified in cases of serious and immediate threat to an economic sector or company. It may take the form of an injunction, such as the removal of anti-competitive clauses in an agreement, or the modification of statutory provisions. As a recent example, the Paris Court of Appeal partially confirmed the decision N°.14-MC-02 of 9 September 2014 (Direct Energie vs GDF- Suez ) in the gas and electricity sectors in which the French Competition Council ordered GDF-Suez to disclose parts of its database containing information on consumers who applied for regulated gas tariffs (decision based on the prohibition of abuse of dominant position).
At the end of the investigation phase and of the adversarial proceedings, the AdlC may accept commitments proposed by companies or associations of companies in order to put an end to anticompetitive practices. If no remedy is considered sufficient by the Authority, it may impose a fine of up to 10% of the global turnover of the company. The amount of the fine depends on the seriousness of the facts, the harm done to the economy of the sector, the situation of the sanctioned entity (or the company, or the group to which the company belongs) and the possible reiteration of the facts. The AdlC may require the company to put an end to the anticompetitive practices at stake, or to modify its behaviour in order to comply with competition law (commitment procedure).
While the French Competition Authority is responsible for the protection of the economic public order, the French courts are in charge of the indemnification of the damages suffered by victims of anticompetitive practices ("private enforcement").
The victim of anticompetitive practices may bring an action before specialised civil and criminal courts (under the control of Courts of Appeal and the French Supreme Court) for indemnification of damages, cancellation or ending of anticompetitive practices prohibited by Articles L.420-1 and L.420-2 of the French Code of commerce (please note that pursuant to Article L.462-3 of the French Code of commerce, the French Competition Authority may be consulted by the courts regarding anticompetitive practices. This suspends the period of limitation, but the courts are not bound by the opinion of the French Competition Authority).
In addition, pursuant to the provisions of Article L.462-6 of the French Code of commerce, the Competition Authority may refer the case to the prosecution in case the anticompetitive practices concerned may result in the application of article L.420-6, which punishes by four years’ imprisonment and a fine of €75,000, "the fact for any person, to fraudulently take [a] personal and decisive [part] in the preparation, organisation and implementation practices referred to in Articles L.420-1 and L.420-2".
Commercial courts can award damages to the plaintiff in order to indemnify actual loss but also loss of earnings (Trib Com Paris 30 mars 2015DKT c/ Eco emballages RG n° 2012000109). The European directiveregarding private enforcement(N°2014/104/UE 26 NOVEMBER 2014)shall be transposed and will increase the effectiveness of indemnification, ensuring full compensation for harm suffered by the victim.
The Administrative Courts
Since the French Administrative Supreme Court is competent for competition law rules (EU and national rules), the administrative courts must apply these provisions, especially when exercising their exclusive jurisdiction to cancel national legislation or administrative contracts.
Accordingly, when national legislation, or any act of a person vested with prerogatives of public power breaches competition law rules, the administrative courts may cancel the act or contract, and award damages, if any.
The Minister of Economy (DGCCRF)
Since the law N°.2008-776 of 4 August 2008 on the modernisation of the economy called "LME", anticompetitive practices may be prohibited by national competition law (excluding agreements that may affect trade between Member States), may be sanctioned by the DGCCRF if the market has a "local dimension" and if the turnover of each of the undertakings concerned does not exceed €50m in France (figure of turnover in the last financial year) and the aggregate turnover does not exceed €100m.
To conclude, many solutions may be used by the victim of anticompetitive practices and a good strategy should be determined to either obtain important damages or to settle in good conditions.
Member of the PARIS and BRUSSELS Bars, economic law and European competition law expert, President of the AFEC, Visiting lecturer in competition law at the Versailles University and at IEP Paris Science Po, Speaker at Ecole Nationale de la Magistrature, French rapporteur of the research conducted by the Starclyde University Law School and the European Commission on private enforcement. Author of the study on the French competition law for Lexis-Nexis Juris-classeur Commercial.
Member of the PARIS Bar, competition law practitioner for 20 years, AFEC member, Board member of the APDC (Association of lawyers practicing competition law) and member of the ICC competition Commission, co-author of “Guide du Contentieux de la concurrence”, author of Juris-Classeur “la procedure de la concurrence”. Visiting lecturer at the University of Nantes, Master II, Trainer in the fields of distribution and competition law for EFE and LEXIS NEXIS.