FRANCE Law and Practice Contributed by: Emmanuel Reille, Dimitri Dimitrov, Franck Audran, Laura Castex and Elizabeth Gautier, Gide Loyrette Nouel
1. Introduction 1.1 Current Framework for Private Antitrust Litigation Under the current legal framework, two distinct regimes for private antitrust litigation coexist. On one hand, disputes that arose before the imple - mentation of Directive 2014/104/EU of 26 November 2014 into French law (ie, before 11 March 2017) are governed by the general rules of French civil liability. The latter is based on Article 1240 of the French Civil Code – according to which, it is necessary to dem - onstrate three conditions: a fault, a damage, and a causal link between them (see 2.1 Statutory Basis for further details). On the other hand, disputes relating to anti-com - petitive infringements that occurred from 11 March 2017 onwards fall under the specific provisions of the French Commercial Code (FCC) (Articles L481-1 to L483- 11 of the FCC) resulting from the implemen - tation of Directive 2014/104/EU into French law by Ordinance No 2017-303 and Decree No 2017-309 on 9 March 2017. Specific rules apply regarding the applicability ratione temporis of substantive and procedural provisions of Directive 2014/104/EU. These will be further dis - Following the implementation of Directive 2014/104/ EU on 11 March 2017, the antitrust activity of French courts has intensified. Several issues are recurrent, such as those related to the limitation period (and, in particular, its starting point), the jurisdiction of the courts in cases of international disputes, and compen - sation for damages. Some key findings, based on recent cases and deci - sions are summarised here. Limitation Period The French courts ruled that the decision of the com - petition authority finding anti-competitive practices is the starting point for the limitation period (Council of State, 22 November 2019, SNCF Mobilités; French cussed in 2.1 Statutory Basis . 1.2 Recent Developments
Supreme Court, 27 January 2021, No S 18-16.279). Conversely, the hearing of the victim by the services of the French Competition Authority (FCA), the knowl - edge of a cartel gained through a press article, or the imprecise knowledge of a cartel held by a manager of the victim company are not sufficient to start the limi - tation period (Paris Court of Appeal, 14 April 2021, No 19/19448; French Supreme Court, 27 January 2021, No S 18-16.279; Paris Court of Appeal, 5 January 2022, No 19/22293). Jurisdiction As regards the jurisdiction of the courts in the case of an international dispute, the French courts have applied the case law of the ECJ (ECJ, 5 July 2018, FlyLal, C-27/17; ECJ, Tibor-Trans, 29 July 2019, C-451/18), in which it ruled that the damage materi - alises at the place where the market is affected by the anti-competitive practices that the victim claims led to its damage (Paris Commercial Court, 9 April 2021, No 2020004977; Paris Court of Appeal, 7 January 2020, No 19/12553). Procedure and Stay of Proceedings The Paris Commercial Court ruled in two cases that the judgment of the General Court of the EU (GCEU) confirming the EC’s decision did not constitute a “definitive decision” under European law, on account of the pending appeal before the ECJ (Paris Commer - cial Court, 4 July 2022, No 2017015670; Paris Com - mercial Court, 18 July 2022, No 2020004977). However, the Paris Commercial Court refused to stay the proceedings, considering such a stay to be “preju - dicial to the claimant by being contrary to one of the fundamental principles of law set forth in Article 6 of the European Convention on Human Rights and, in particular, the right to be judged within a reasonable time – even though more than 15 years have passed since the facts in dispute”. The Paris Commercial Court then ordered the parties to submit their briefs on the merits (Paris Commercial Court, 18 July 2022, No 2020004977). Damages As regards damages, the Paris Court of Appeal has accepted compensation for the loss of opportunity (Paris Court of Appeal, 8 February 2019, No 16/06164)
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