FRANCE Law and Practice Contributed by: Emmanuel Reille, Dimitri Dimitrov, Franck Audran, Laura Castex and Elizabeth Gautier, Gide Loyrette Nouel
to any presumption that there has been no infringe - ment of competition law (French Supreme Court, 25 September 2024, No 23-13.067). Claimants also benefit from a rebuttable presump - tion that cartels cause harm (Article L481-7 of the FCC). Nevertheless, with regard to infringements that occurred before the entry into force of Ordinance No 2017-303, the claimant must demonstrate that the sanctioned practice caused the plaintiff harm and ‒ as the French Supreme Court recently recalled ‒ the characterisation of such a practice does not neces - sarily imply that harm was caused to operators active directly or indirectly in that market (French Supreme Court, 26 February 2025, No S 23-18.599). As regards the infringements that occurred after the entry into force of Ordinance No 2017-303, Article L481-4 of the FCC provides that the direct or indirect purchaser of the products or services concerned by the anti-competitive practices is deemed not to have passed on the additional cost to its direct contrac - tors – unless the defendant proves otherwise. Hence, for infringements occurring after 11 March 2017, the burden of proof for the pass-on defence rests on the defendant. In this respect, the Paris Court of Appeal ruled that Ordinance No 2017-303 was not applicable to a case where the events giving rise to the liability occurred prior to 11 March 2017 and therefore the claimants were required to prove that they had not passed the loss of profit owing to the reduced margins resulting from the sanctioned cartel on to consumers (Paris Court of Appeal, 5 January 2022, No 19/22293, confirmed by the French Supreme Court, 6 September According to Article L481-4 of the FCC, introduced into French law by Ordinance No 2017-303, the direct or indirect buyer is deemed not to have passed on the overcharge to its direct clients. In other words, the new regime applicable to private enforcement litiga - tion provides for rebuttable presumptions regarding passing on, with the burden of rebutting the presump - tion resting on defendants. It should be noted that this presumption counts among the substantive provisions of Ordinance No 2017-303, which are not applicable retroactively. 2023, No S 22-13.753). 2.5 Pass-On Defence
For all claims falling outside the temporal scope of Ordinance No 2017-303, one should refer to previous case law on this specific question. In this respect, the French Supreme Court ruled that no compensation is due if the claimant has passed on its loss to its clients and that the burden of proof of the absence of passing on lies with the claimant (French Supreme Court, 19 October 2022, No 21-19.197; French Supreme Court, 15 June 2010, No 09-15.816). In other words, the claimant requesting the reparation of harm must prove that it actually suffered such harm and thus must pro - vide evidence that it did not pass on the overcharge allegedly causing such harm. Indeed, under French law (and as discussed in 8.1 Damages: Assessment, Passing On and Interest ), the damages awarded are compensatory in nature – meaning that they must correspond to the full damage suffered by the victim but cannot exceed the damage actually suffered. Under this general principle, claim - ants can only recover the amounts actually lost and not the amounts passed on. Such passing on can be only partial, as the Paris Court of Appeal found in a case where it considered that the extra costs could only have been partially passed on to final prices (Par - is Court of Appeal, 24 November 2021, No 20/04265). It should, however, be noted that the French Supreme Administrative Court (the Council of State) ruled that the burden of proof relating to the passing on of the extra costs to customers was not exclusively on the claimant in an instance that fell outside the temporal scope of Ordinance No 2017-303 (Council of State, 12 October 2020, SNCF Mobilités No 432981). The solu - tion thus adopted by administrative courts seems to comply with Directive 2014/104/TFUE and Ordinance No 2017-303. 3. Limitation Periods and the Duration of Litigation 3.1 Statute of Limitations Applicable Rules The limitation period applicable to actions for com - pensation in connection with anti-competitive prac - tices is five years (Article L482-1 of the FCC), which is identical to ordinary civil law actions (Article 2224
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