FRANCE Law and Practice Contributed by: Emmanuel Reille, Dimitri Dimitrov, Franck Audran, Laura Castex and Elizabeth Gautier, Gide Loyrette Nouel
April 2021, No 2020004977; see also Paris Court of Appeal, 7 January 2020, No 19/12553). Where the defendant is not domiciled in an EU mem - ber state, French courts will apply French international private law. Under French law, in matters relating to tort (delict or quasi-delict), the alleged victim must bring their claim before the courts of the country where the defendant is domiciled or before the courts of the places where the harmful event occurred or where the loss was suffered (Article 46 of the FCPC). Applicable Law Under French law, the law applicable to contractual obligations is determined in accordance with the pro - visions of Regulation No 593/2008 of 17 June 2008 (the “Rome I Regulation”), whereas the law applicable to non-contractual obligations is determined pursu - ant to the provisions of Regulation No 864/2007 of 11 July 2007 (the “Rome II Regulation”). Whether an obligation is contractual or non-contractual (ie, tor - tious) must be assessed from an EU law perspective, in light of the rulings of the ECJ. From a general perspective, the law applicable to a non-contractual obligation arising from a tort is the law of the country in which the damage occurred (Arti - cle 4, Section 1 of the Rome II Regulation), unless the alleged liable person and the alleged victim both have their habitual residence in the same country at the time when the damage occurs – in which case, the law of that country will apply (Article, 4 Section 2 of the Rome II Regulation) – or unless the tort is manifestly more closely connected with another country (Article 4, Section 3 of the Rome II Regulation). This set of rules also applies in the specific case of an act of unfair competition exclusively affecting the interests of a specific competitor (Article 6, Section 2 of the Rome II Regulation). Specific rules apply to other unfair competition acts and acts restricting free competition. Under Article 6 of the Rome II Regulation, the law applicable to a non-contractual obligation arising from an act of unfair competition is the law of the country where competi - tive relations or the interests of consumers are – or are likely to be – affected (Article 6, Section 1 of the Rome II Regulation). The law applicable to a non-contractual
obligation arising from a restriction of competition is the law of the country in which the market is – or is likely to be – affected (Article 6, Section 3 (a) of the Rome II Regulation). Where several markets may be affected, the law of the court of the defendant may also apply, under certain conditions (Article 6, Section 3 (b) of the Rome II Regulation).
6. Disclosure/Discovery 6.1 Disclosure/Discovery Procedure
Courts apply the provisions of the FCPC (Articles 132–142 and Article 145) to disclosure requests and the production of documents filed for or in connection with private enforcement litigation (Article L483-1 of the FCC). For each request for disclosure, a judge must balance the legitimate interest of the claimant with the need to guarantee the protection of confidential informa - tion (paragraph 2 of Article L483-1 of the FCC). This means: • checking the usefulness of the evidence requested; • protecting the confidentiality of documents, par - ticularly with regard to business secrets; and • preserving the effectiveness of competition law (implementing Decree No 2017-305 of 9 March 2017). Several categories of documents are distinguished (Articles L483-2 to L483-11 of the FCC), such as busi - ness secrets, privileged documents, and certain cat - egories of evidence submitted or held by competition authorities. Fines of up to EUR10,000 may be imposed in the event of a failure or refusal to comply with the court’s order of disclosure or if the evidence is destroyed (Article R483-14 of the FCC). Article 145 of the FCPC allows for in futurum disclo - sure measures. This provision allows a party to seek an ex parte judicial order to force the opposing party to produce documents and information that are con - sidered useful for it to initiate a lawsuit. The judge may order a set of measures such as a bailiff’s inspection,
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