FRANCE Law and Practice Contributed by: Emmanuel Reille, Dimitri Dimitrov, Franck Audran, Laura Castex and Elizabeth Gautier, Gide Loyrette Nouel
can be ordered by the court when the judge is not supplied with sufficient material to determine the mat - ter (Articles 263 of the FCPC). When a judge orders an expert report, it must determine the scope of the issue assigned to the expert and specify the period during which the expert will work on it (Article 265 of the FCPC). Usually, only one person will be appointed as an expert, unless the judge deems it appropriate to appoint several (Article 264 of the FCPC). If the expert opinion does not require written explanations, the judge may allow the expert to present it orally at the hearing; it will be recorded in the minutes. The drafting of the minutes may, however, be replaced by a refer - ence in the final judgment if the matter is judged in a court of last instance (Article 282 of the FCPC). The judge may – on their own initiative or at the request of the parties – at any time increase or restrict the scope of the investigative measures the judge has organised and amend the terms of the assignment given to the expert (Article 236 of the FCPC). The expert must take into consideration the findings or claims of the parties and, where they are written, will attach them to its opinion if the parties so request. The expert must state in its opinion the decision it has taken in respect of these findings or claims (Article 276 of the FCPC). The expert cannot decide questions of law (Administrative Court of Appeal of Nancy, 22 September 2022, No 21NC0297). 8. Damages 8.1 Damages: Assessment, Passing On and Interest Article L481-3 of the FCC provides a non-exhaustive list of the types of damage for which victims of com - petition infringements may seek compensation, as follows: • the loss resulting from an overcharge or from excessively low prices; • the loss resulting from the decrease in sales vol - ume; • loss of opportunity; and • non-pecuniary harm.
In a recent standalone action concerning an abuse of dominant position, the Paris Court of Appeal accepted the necessity of compensation for the loss of oppor - tunity (Paris Court of Appeal, 8 February 2019, No 16/06164). Furthermore, and as mentioned in 1.2 Recent Devel - opments , it was also found ‒ in the context of a private enforcement claim ‒ that the victim of a cartel suffered moral damage as a result of “negotiating for years with suppliers who pretended to negotiate” (Paris Court of Appeal, 23 June 2021, No 17/0410). The Paris Court of Appeal also ruled that the eviction of a daily newspaper due to abuse of a dominant position could cause moral damage. Indeed, the court ruled that said eviction “tarnished the image and reputation” of the publishing company and “damaged the confidence and dynamics created around the launch of this new daily newspaper, undermining its ability to attract and retain new talent” (Paris Court of Appeal, 23 February 2022, No 19/19239). In order to determine the damage, the courts have various procedural and non-procedural tools at their disposal, such as: • an expert opinion in the event that the victim encounters difficulties in assessing the economic loss suffered; • the opinion of the competition authority (Article R.481-1 of the FCC); • the collection of guidance notes on the evaluation of damages of the Paris Court of Appeal, updated in 2024 (see 1.2 Recent Developments for further detail); and • the nomenclature of damages caused by anti-com - petitive practices proposed by Professor Rafael Amaro in January 2022 (see 1.2 Recent Develop - ments for further detail). Damages awarded by French courts are compensa - tory in nature. They correspond to the full damage suffered by the victim but are limited to this amount (ie, the amount necessary to place the victim in the position in which the victim would have been in the absence of the infringement). French law does not provide for any additional damages (eg, punitive dam - ages).
93 CHAMBERS.COM
Powered by FlippingBook