FRANCE Law and Practice Contributed by: Emmanuel Reille, Dimitri Dimitrov, Franck Audran, Laura Castex and Elizabeth Gautier, Gide Loyrette Nouel
2. Private Antitrust Claims: Basis and Procedure 2.1 Statutory Basis Ordinance No 2017-303 was adopted on 9 March 2017. Its substantive provisions relating to liability, burden of proof, presumptions, and various ques - tions on the admissibility of evidence are applicable to claims in which the infringement occurred after Ordinance No 2017-303 came into force (ie, after 11 March 2017). As an exception, its procedural rules on disclosure and access to evidence are applicable to private enforcement claims brought before the com - petent courts from 26 December 2014 onwards (Paris Court of Appeal, 28 June 2023, RG No 21/13172). In this context, some claimants try to use the provi - sions of Ordinance No 2017-303 before the courts even though there are not applicable ratione tem - poris. However, the French courts ruled against the provisions of Ordinance No 2017-303 being appli - cable to private enforcement claims brought on grounds of infringements pre-dating Ordinance No 2017-303 (French Supreme Court, 19 October 2022, No 21-19.197; Paris Court of Appeal, 23 June 2021, RG No 17/0410; Paris Court of Appeal 24 November 2021, No 20/04265; Paris Court of Appeal, 5 January 2022, No 19/22293). When the provisions of Ordinance No 2017-303 are not applicable ratione temporis, standard civil law rules on liability and procedure remain in force. The standard provision applicable to private enforcement actions ‒ whether follow-on or standalone ‒ is Arti - cle 1240 of the French Civil Code on tortious liabil - ity, whereby the claimant must establish a “fault” (ie, an infringement of competition law), damage, and a direct causal link between the fault and the damage suffered. Ordinance No 2017-303 alleviates the claimant’s bur - den of proof, as it creates a non-rebuttable presump - tion of the existence of a fault for all claims based on final infringement decisions adopted by the FCA or the EC (Article L481-2 of the FCC). Claimants also benefit from a rebuttable presumption that cartels cause harm (Article L481-7 of the FCC).
and increasingly also accepts compensation for mor - al damages suffered (Paris Court of Appeal, 17 May 2023, No 21/01033) as a result of “negotiating for years with suppliers who pretend to negotiate” (Paris Court of Appeal, 23 June 2021, No 17/0410) or where the eviction of a daily newspaper had “damaged the confidence and the dynamics created around the launch of this new daily newspaper” (Paris Court of Appeal, 23 February 2022, No 19/19239). See 8.1 Damages: Assessment, Passing On and Interest for further details. In addition to the guidance provided on 23 March 2017 by the Ministry of Justice, new soft legal instru - ments are emerging to assist courts and parties in their private enforcement proceedings. On 1 January 2024, the Paris Court of Appeal published updated guidance notes (available in French and in English) on the evaluation of economic loss, including regard - ing private enforcement claims. These sheets provide useful guidelines on applicable law, the limitation peri - od, the damages that can be compensated, and the elements of proof in the context of a claim stemming from an anti-competitive practice. Furthermore, guidance on damage classification has been provided in the nomenclature “of dam - ages caused by anti-competitive practices” pro - posed in 2022 by Professor Rafael Amaro in Outline of a Nomenclature of Damages in Competition Law ( Recueil Dalloz , 2022, 26, pp 1,323–31), which dis - tinguishes and specifies five categories of damage: • overcharge damage; • eviction damage; • investment damage; • loss of value of intangible property; and • moral damage. This nomenclature is not intended to be binding. Nonetheless, it could be a useful tool to guide inter - ested parties and the courts in the assessment of damages.
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