FRANCE Law and Practice Contributed by: Emmanuel Reille, Dimitri Dimitrov, Franck Audran, Laura Castex and Elizabeth Gautier, Gide Loyrette Nouel
age suffered. Furthermore, “qualified entities” from other EU member states are also authorised to bring class actions in France. 4.3 Direct/Indirect Purchasers Claims can be brought by direct and indirect pur - chasers, pursuant to Article L481-5 of the FCC, which refers to both types of purchasers. The indirect purchaser, whether of goods or services, is deemed to have provided proof that it incurred overcharges where it can prove that: • the defendant has committed an anti-competitive practice mentioned in Article L481-1 of the FCC; • this practice has resulted in additional costs for the direct contractor of the defendant; and • it has purchased goods or used services affected by the anti-competitive practice or purchased goods or used services derived from or containing them. The defendant may, however, demonstrate that such additional cost was not passed on to the indirect buy - er or that it was only partially passed on by its direct contractor. As regards the question of whether “indirect” buyers were entitled to compensation in the event that a car - tel had generated “umbrella effects”, the Council of State has acknowledged compensation for such dam - age, as these indirect buyers were collateral victims of the price increase. In that case, the decision of the EC had established that the practices of the cartelists had a general effect on market prices, including those of companies – such as the plaintiff’s main supplier dur - ing the period – that were not members of the cartel (Council of State, 12 October 2020, SNCF Mobilités, No 432981; Paris Administrative Court of Appeal, 17 February 2023, No 14PA02419). 4.4 Class Certification The French class action system differs from that in the UK, where it is necessary to first obtain class certifica - tion from the Competition Appeal Tribunal before initi - ating a class action. In France, there is no requirement for the class to be certified – nor any prior require - ment of this type – and the court seised of the class action will rule on the admissibility of the class action
together with the liability of the professional against whom it is brought.
5. Choice of Jurisdiction 5.1 Rules on Jurisdiction and Applicable Law In international disputes, the relevant jurisdiction is determined pursuant to EU international private law or French international private law, depending on the foreign state or states involved. The relevant rules of EU international private law can be found in Regula - tion No 1215/2012 of 12 December 2012 (the “Brus - sels I Recast Regulation”). A defendant domiciled in an EU member state may be sued before the courts of that state (Article 4 of the Brussels I Recast Regula - tion). It may only be sued before the courts of another member state under certain conditions. In matters relating to tort (delict or quasi-delict), the general rule is that the courts of the place where the harmful event occurred have jurisdiction (Article 7, Section 2 of the Brussels I Recast Regulation). This covers both the place where the event giving rise to the damage occurred and the place where the dam - age was suffered. As regards the concept of “harmful event”, the French courts have applied the principle of the FlyLal and Tibor-Trans judgments (ECJ, 5 July 2018, FlyLal, C-27/17; ECJ, Tibor-Trans, 29 July 2019, C-451/18) – ie, the damage materialises at the place where the market is affected by the anti-competitive practices and within which the victim claims to have suffered their damage. Indeed, in a case concerning an action for damages by a price comparison service as a result of anti-competitive practices implemented by Google and sanctioned by the EC, the Paris Commercial Court considered that it had jurisdiction on the grounds that: • the claimant provided evidence that it carried out all of its price comparison activity from its head office in Paris (and not from its foreign subsidiar - ies); and • the claimant’s French entity was solely responsible for the design, publication and management of all websites, whether they were intended for a French or foreign audience (Paris Commercial Court, 9
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