Private antitrust litigation in France: overview

A Q&A guide to private antitrust litigation in France.

The Q&A provides a high level overview of the legal basis for bringing private antitrust litigation actions; parties to an action; limitation periods and forum; standard of proof and liability; costs and timing; pre-trial applications and hearings; alternative dispute resolution; settlement or discontinuance of an action; proceedings at trial; available defences; available remedies; appeals and proposed legislative reform.

This Q&A is part of the Private Antitrust Litigation Global Guide.

The private antitrust litigation global guide serves as a single, essential, starting point of practical reference for both clients and practitioners in considering the various merits of commencing, defending or settling antitrust claims.

Contents

Legal basis for bringing private antitrust litigation actions

1. Can stand-alone and/or follow-on actions be brought in the context of private antitrust litigation? If so, what is the legal basis for bringing such actions?

Stand-alone actions

In France, victims of antitrust practices can bring stand-alone actions before the courts, regardless of whether the French Competition Authority (Autorité de la Concurrence) has already found an infringement. Stand-alone actions are available for any type of antitrust infringement (for example, in relation to cartels or abuses of a dominant position).

Legislative. There is no specific legislation in relation to bringing a stand-alone action. For example, damages actions for competition infringements before a civil or commercial court can be based on French tort law under the French Civil Code (Article 1382, Civil Code) or contractual liability, in conjunction with the relevant antitrust provision.

Non-legislative. Not applicable.

Adversarial or inquisitorial. Under French law, civil or commercial litigation is always adversarial.

Follow-on actions

In France, victims of antitrust practices can seek compensation before courts based on a follow-on action. In fact, seeking compensation through a follow-on action is likely to be easier than through a stand-alone action.

Under French law, follow-on actions can be brought in relation to all antitrust infringement (including both cartels or abuses of a dominant position). Applicants for a follow-on action must then satisfy the general conditions required for any civil claim.

Legislative. There is no specific legislation for bringing a follow-on action under French law. Damages actions for competition infringements before a civil judge are based on the relevant provisions of the Civil Code in connection with the relevant antitrust regulations.

Non-legislative. Not applicable.

Adversarial or inquisitorial. Under French law, civil or commercial litigation is always adversarial.

 

Parties to an action

2. What must be demonstrated to commence an action?

Stand-alone actions

The right to bring an action before a civil or commercial judge follows the general French rules relating to tort claims or contractual claims. An applicant for a tort action must have an interest in the success of the claim. This interest must be personal, real and legitimate. Any person or entity who can demonstrate it has an interest in the success of the clam has standing to bring the action.

Third parties (including both direct and indirect purchasers) can bring stand-alone actions. Competitors, contracting parties, clients of the infringer or indirect victims (such as consumers or clients of the direct victim) may also have standing to bring a stand-alone action.

Follow-on actions

The right to bring an action before a civil or commercial judge follows the general French rules relating to tort claims or contractual claims. An applicant for a tort action must have an interest in the success of the claim. This interest must be personal, real and legitimate. Any person or entity who can demonstrate it has an interest in the success of the clam has standing to bring the action.

Third parties (including both direct and indirect purchasers) can bring follow-on actions. Parties to an infringing agreement can bring actions against other infringing parties to the agreement.

 
3. Is it possible to bring actions on behalf of multiple claimants (for example, collective actions)?

Stand-alone actions

Multiple claimants. There is no tradition of collective or class actions in France. As a general principle, each and every claimant must be formally part of the action. However, as an exception, a recent law introduced the right for certain state-approved consumer associations to bring collective actions and claim compensation under tort law for damages to the collective interest they represent (Article L.623-1 et seq, Consumer Code).

Opt-in or opt-out. Under the French collective action mechanism (see above, Multiple claimants), claimants must opt-in to collective actions. A declaratory judgment by the relevant court defines the conditions to be met by the consumers in order to be able to join the collective action (for example, the fact that they are in the category of consumers concerned by the collective action).

Certification. A French collective action must be introduced by a state-approved consumer association. As a result of this requirement, only a very limited number of associations can bring such an action.

Follow-on actions

The rules relating to multiple claimants, opting in and certification are the same as for stand-alone actions (see above, Stand-alone actions).

 
4. On what basis will a court or tribunal assume jurisdiction with respect to a claim?

Stand-alone actions

Under Article L.420-7 of the Commercial Code, antitrust damage claims can only be brought before one of the 16 courts that specialise in competition matters (which include eight courts of first instance and eight commercial courts). Before any of these courts will assume jurisdiction, the claimant must bring a civil action before one of the following:

  • The court of the place of business of the defendant.

  • The place where the harmful event occurred.

  • The place where the damage was suffered.

Follow-on actions

The rules relating to assuming jurisdiction are the same as for stand-alone actions (see above, Stand-alone actions).

 
5. Can actions be brought against individuals (such as directors of corporate entities), whether domiciled within, or outside of, the jurisdiction?

Stand-alone actions

Private actions can be brought against individuals if they have committed a personal fault which caused the damage. In addition, Article L.420-6 of the Commercial Code sets out criminal penalties for individual who intentionally take a personal and determining part in an infringement of antitrust law. A damage claim could therefore be brought before the same court on the same occasion.

However, in practice, private actions are brought against corporations, which are more likely to have the relevant financial capacity.

Follow-on actions

The rules relating to such actions are the same as for stand-alone actions (see above, Stand-alone actions).

 

Limitation periods and forum

6. What are the relevant limitation periods for stand-alone and/or follow-on actions? When do these start to run? Can these be extended?

Stand-alone actions

Claims for compensation (such as antitrust claims) are limited to five years from the manifestation of the damage (Article 2224, Civil Procedure Code). The five-year limitation period commences when the claimant becomes aware (or should have become aware) of the facts enabling him to exercise his right. In the case of a secret practice such as a cartel, the limitation period will commence from the decision issued by the French Competition Authority.

Follow-on actions

The rules relating to limitation periods are the same as for stand-alone actions (see above, Stand-alone actions).

 
7. Where can an action be commenced? Are there specific courts or tribunals before which stand-alone and/or follow-on actions may be brought?

Stand-alone actions

Under Article L.420-7 of the Commercial Code, antitrust damage claims can only be brought before one of the 16 courts that specialise in competition matters (which include eight courts of first instance and eight commercial courts).

Follow-on actions

See above, Stand-alone actions.

 
8. Where actions can be brought before different courts and tribunals, what are the comparative advantages and disadvantages of bringing actions in each forum?

There are no particular advantages or disadvantages in bringing an action in any of the 16 courts that specialise in competition matters in France. Maybe the Paris courts are of higher quality, but this is a very subjective assessment. There is also not much case law.

 

Standard of proof and liability

9. What is the standard of proof?

Standard of proof

To establish the necessary standard of proof, a claim must demonstrate all of the following:

  • An antitrust infringement.

  • Damage caused to the claimant.

  • A causal link between the infringement and the damage.

Burden of proof

The burden of proof lies with the claimant. However, the defendant can produce any evidence to the contrary.

If the claimant lacks sufficient evidence, the judge can order inquiry measures, but is not obliged to do so.

There is no discovery or deposition mechanism in France. This means that in can be difficult to obtain evidence.

Rebuttable presumptions

Whenever a potential violation of antitrust law is presented to the French courts by the European Commission, the French courts must follow the principle under Article 16 of Regulation No. 1/2003. This provision prohibits national courts from taking decisions that conflict with any previous decision adopted by the Commission.

Apart from the above, there is no particular presumption system.

 
10. Is liability on a joint and several basis?

According to general civil liability rules, parties that cause damage collectively are jointly and severally liable.

Consequently, where several persons have contributed to single and indivisible damage through joint anti-competitive behaviour, any of the authors of such behaviour can be obliged to pay the full compensation of the damage caused. In relation to apportioning the liability, the court will define the amount for which each defendant based on particular on the degree of their contribution to the infringement.

A claim for damages against cartel members for purchases they made from non-cartel members (on the basis that the cartel led to them paying inflated prices) would be difficult to make. Such a claim would require proof of the degree of price inflation. In addition, the French courts are likely to find such damage too indirect to be eligible for compensation.

Considering the fact that defendants can be jointly and severally liable, they may be obliged to pay the full compensation of damages to the victims. In this case, the defendant or defendants that paid the damages can subsequently file an action for contribution against the other defendants who did not participate in the initial payment.

Private enforcement is not yet much developed in France. Case law therefore does not provide much guidance on this issue.

As a general matter, claims under commercial and civil law in France have a statute of limitation of five years.

 

Costs and timing

11. What are the recent trends in relation to the costs of bringing an action before the relevant courts/tribunals?

Litigation in France is known to be relatively inexpensive compared to some other jurisdictions. This is because:

  • There are no disclosure/discovery proceedings (see Question 26).

  • Almost no costs must be paid for the judicial action itself apart from the lawyers' fees.

  • If the case is lost, only an equitable proportion of the other party's costs (set by the court) must be paid by the losing party (see Question 12).

 

Stand-alone actions

Follow-on actions

12. What is the applicable principle regarding the apportionment of the costs of the action? Is there a "loser pays" approach to costs?

Under French civil procedural law, the general principle is that the unsuccessful party bears the (usually very low) judicial costs related to the proceedings (Article 696, Civil Procedure Code). The court may also order the unsuccessful party to pay a proportion of the other party's lawyers' fees (Article 700, Civil Procedure Code). In practice, the judge will order such payment taking into account fairness and the financial situation of the parties, and it will rarely cover the actual cost.

 
13. Can parties insure against costs risk associated with an action?

In France, third party funding is uncommon, except when it is based on an insurance policy (see Question 14).

 
14. Can a third party fund the costs of bringing an action?

Third-party funding is possible in France. However, under French professional conduct rules, a lawyer can only accept a fee payment from a client or a client's agent. Therefore, the funding must be organised in a way which is compatible with this principle.

 
15. Can claimants assign their claim to a third party funder?

In France, third party funding is uncommon, except when it is based on an insurance policy (see Question 14).

 
16. Can parties engage legal representation under either a "conditional" fee arrangement, or a "damages-based" fee arrangement?

According to French professional conduct rules, lawyers are prohibited from accepting a fee payment based solely on the outcome of the case. Contingency fees must therefore be a complement to the general fee. The fee arrangement must be provided for in advance and in writing.

 
17. If it possible for a defendant to a claim to bring an application for security for costs?

It is not possible for a defendant to bring an application for security for costs, as the concept does not exist in France.

 
18. What is the current trend, if any, regarding the period of time from commencing an action to a subsequent first instance judgment by a competent body?

It is difficult to provide a typical timetable for civil proceedings, as this can vary significantly depending on:

  • The circumstances of the case.

  • The complexity of the facts and the availability of evidence.

  • Which local court is ruling on the case.

However, civil litigation before French courts will in most cases require 18 to 24 months of proceedings at the court of first instance.

 

Pre-trial applications and hearings

19. Where statements of case are lodged with the relevant court or tribunal, can third parties seek to obtain copies?

Not applicable.

 
20. Can a claimant seek interim measures?

While it is not possible to accelerate the procedure, it is possible for parties to request interim measures. The general procedural rules governing interim measures do cover competition cases (Articles 771, 808 et seq and 873 et seq, French Civil Procedure Code). In particular, the President of the court can order the payment of interim damages if the claim is not seriously challenged. However, for this reason, interim measures and proceedings are not seen as appropriate for antitrust damage cases, as it would be easy for the defendant to challenge the existence of an emergency situation and the existence of a blatant infringement and evident damage calculation method.

 
21. Can a defendant seek to dispose of all or part of the action prior to a full trial?

Not applicable.

 
22. Can a defendant seek to stay an action (for example, pending the outcome of an investigation by a competent competition authority, or an appeal)?

It is possible, and customary, to ask courts to stay an action pending the outcome of other events which may impact the judgment. Typically, requests to stay proceedings while an investigation by an authority is pending are granted.

In principle, a court could stay proceedings pending appeal of a decision of the French Competition Authority.

 
23. Can a party seek to have a specific issue (such as limitation) tried as a preliminary issue in advance of a full trial?

The French courts sometimes accept a request to rule on jurisdiction issues first, although they are not obliged to do so.

 

Evidence and legal privilege

24. Are existing findings of fact and/or infringement in a decision or judgment of a competent authority or body binding in the context of an action?

Competition authority decisions

At present, Directive 2014/104/EU on actions for damages under national law for infringements of competition law provisions of the member states (Antitrust Damages Directive) has not yet been transposed into French law. Therefore, the principle according to which a court would be bound by the findings of a final decision of a competition authority is not yet applicable as a matter of national law.

However, it is unlikely that a French court would decide against such findings in practice.

Judgments

There is no rule of precedent in France, as a matter of principle.

 
25. What is the evidential status of findings of fact and/or infringement in a decision or judgment of a body in a third country?

Findings of fact or infringement have the same evidential status as any fact brought to the attention of the court: they can be taken into account but will not be binding on the judge.

 
26. If discovery is available, what is the general procedure for discovery, and what documents would need to be disclosed?

There are no discovery or disclosure proceedings in France.

Before the commencement of the trial, one of the parties can request the court to order precisely defined onsite investigatory measures, which will be performed by a bailiff (and with the help of an IT expert, if so required) (Article 145, French Civil Proceedings Code). This type of proceedings is on an upward trend in France. However, it does not have the same effectiveness as the US or UK-style disclosure mechanisms.

 
27. Can a party oppose the provision of any documents not in their possession or control?

Only evidence that is being produced to the French courts and that is disclosed to all parties to the proceedings can be used during proceedings.

 
28. Can parties rely on legal privilege to withhold documents from inspection?

Legal privilege has an impact under French law only in the context of investigations by competition authorities. As there are no discovery or disclosure proceedings before French courts (see Question 26), legal privilege does not really impact private enforcement proceedings. However, in the context of limited pre-trial investigations ordered by the court, legally privileged documents cannot be investigated. Legal privileged only applies to client-attorney correspondence.

 

Alternative dispute resolution

29. Can the parties seek to resolve the action through alternative dispute resolution?

Alternative dispute resolution (including judicial and out-of-court mediation) is possible and the French courts try to foster such mechanisms. However, these mechanisms are not yet mandatory or customary.

Parties are not required to engage in alternative dispute resolution prior to trial, unless it was provided for under a contract between them. Since 1 April 2015, any writ of summons must mention what has been done to avoid litigation (which can include, for example, the use an alternative dispute resolution method).

There is no obligation to engage in alternative dispute resolution in good faith. There are also no implications for refusing to engage in alternative dispute resolution.

 

Settlement or discontinuance of an action

30. What are the tactical advantages and disadvantages associated with making an offer of settlement?

Settlement discussions are often held between lawyers before or during the trial. All discussions between French lawyers are confidential and privileged, unless the lawyers concerned have agreed otherwise, which can help coming to an arrangement. The relatively low cost of French proceedings makes it advantageous to start litigation with the objective of settling.

 
31. Is permission required from the relevant court or tribunal to settle any action prior to or during trial?

No permission is required to settle the case. A settlement usually appears out an out-of-court settlement agreement which provides for the termination of court proceedings. Both parties then apply for the end of the proceedings, which is accepted by the court.

Usually, each party will take care of its own costs but the settlement agreement can provide otherwise.

Settlement agreements generally provide that the case is fully closed and settled, so that courts can no longer intervene.

In the context of collective actions (see Question 3) Article 423-16 of the French Consumer Code provides that any agreement negotiated by the authorised consumer association is subject to the approval of the judge, who ensures that it complies with the interests of the consumer category concerned and makes the agreement binding.

 

Proceedings at trial

32. Are actions heard by a jury?

In France, there are no juries for civil/commercial matters. Commercial judges are non-professional judges elected by the local business community, while civil court and court of appeals judges are professional judges.

 
33. How is confidential information protected during the course of proceedings?

There is no principle of protection of business secrets for evidence which is produced before the court, because all parties to the proceedings must be able to debate on the evidence that is provided.

 
34. What evidence is admissible?

Evidence from criminal proceedings is only admissible in certain circumstances in commercial/civil litigation and, as a matter of principle, the content of criminal investigations is protected by secrecy obligations. However, there are practical ways to arrange for criminal evidence to be produced before a civil or commercial court. The court can also order that such evidence be produced.

Witness evidence is not used in France. Expert reports are the most common evidence used before the courts. Witnesses usually produce evidence in the form of affidavits.

Evidence from an expert named by the court or retained by one or several parties is admissible, although this evidence is not binding on the court.

There is no cross-examination system in France and therefore there is no cross-examination of experts.

 

Available defences

35. Is a "passing-on" defence available?

The passing-on defence is available. This is not available as a formal defence provided for by law, but as part of the methodology for the calculation of the actual damage that was suffered by the victim of the antitrust infringement.

For example, in a 2006 case the commercial court of Paris ruled that the claimants could have passed on their price increase and rejected the parties' argument that a price increase would have led to a loss in market share (Arkopharma, Tribunal de commerce of Nanterre, 11 May 2006).

 
36. Are any other defences available?

Antitrust actions are based on Article 1382 of the Civil Code, which implies that the parties have to prove a fault, damage, and a causal link between the two. Accordingly, defendants usually try to prove that one or several of these conditions are not met. As these are cumulative requirements, the proof of the absence of one of the three is sufficient to successfully dismiss a claim.

 

Available remedies

37. Are damages available, and if so, on what basis are damages awarded?

Damages

Damages are the principal remedy sought in French private enforcement actions.

The role of competition and public authorities in France is to punish the infringing party, while in antitrust actions before French courts the only award is damages to the victims. These are two separate actions which do not pursue the same goals. Therefore, fines paid by the infringing party are not taken into account for the calculation of damages.

Only compensatory claims are admissible in France: victims of the infringement are compensated with damages for the harm actually suffered. This harm can be:

  • Pecuniary (for example, in relation to a price increase, loss of opportunity to make profits).

  • Non-pecuniary (for example, damage to reputation).

Exemplary damages and/or punitive damages are not granted in France.

Interest

According to Article 1153-1 of the Civil Code, a legal interest rate (determined twice a year by decree) automatically applies to damages granted by a judicial decision. As a matter of principle, interest is charged from the date of the decision.

 
38. How are damages quantified?

The burden of proof for the quantification of damages rests on the claimant. In complex cases this is generally done via expert reports provided by the claimant. However, courts can also designate court appointed experts, whose reports have more chances to be followed and who have powers to obtain evidence from the parties.

There is presently not enough case law in this field to reveal a particular trend. Most expert reports used in these cases calculate the price surcharge caused by the infringement through speculation about what would have happened without the infringement (based on after/before comparisons).

 
39. Are any other remedies available?

In particular cases and when required, French courts can pronounce injunctions to either:

  • Cease the infringing practice.

  • Annul clauses or contracts that are causing the infringement.

 

Appeals

40. Is it possible to appeal the judgment of the relevant court or tribunal?

It possible to appeal the judgment of the relevant court in competition cases before the Paris Court of Appeal, which has exclusive jurisdiction over these cases. Decisions issued by the Court of Appeal can be further challenged before the Supreme Court (Cour de Cassation), which can only decide on issues of law.

Appeal is available on grounds of facts and on grounds of law. In essence, the whole case is judged again.

 

Reforms

41. Are there any reforms proposed or due regarding the legal regime applicable to private antitrust actions?

A major reform is due in the form of the Antitrust Damages Directive. This will need to be implemented by the end of 2016.

 

Online resources

Legifrance

W www.legifrance.gouv.fr

Description. All legal provisions can be found on this website as well as certain court decisions.



Contributor profile

Aurélien Condomines, Partner

Aramis

T +33 1 53 30 77 00
F +33 1 53 30 77 01
E condomines@aramis-law.com
W www.aramis-law.com

Professional qualifications. Paris Bar; Brussels Bar

Areas of practice. Antitrust; distribution and litigation.


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