FRANCE Law and Practice Contributed by: Emmanuel Reille, Dimitri Dimitrov, Franck Audran, Laura Castex and Elizabeth Gautier, Gide Loyrette Nouel
When the court finds that the claimant’s quantifica - tion of damages is insufficiently demonstrated, it may rely on the facts of the case to assess damages and award a minimum amount of compensation to the claimant (Paris Commercial Court, 9 March 2023, No 2019063474). Compensation for damages is paid as a nominal amount, increased by the payment of either the statutory (legal) interest rate or a compensatory rate ‒ for example, the weighted average cost of capi - tal (WACC). In this respect, the French Supreme Court has recently provided three sets of clarifications on the regime applicable to this additional loss linked to the passing of time: • the victim must prove the use they would have made of the sums from which they were deprived; • the additional loss must be set for each year and the claimant cannot simply use an average rate for the entire period; and • the additional loss must be compensated from the date of its occurrence until the date of the judg - ment on liability, taking into account its gradual increase over time (French Supreme Court, 7 June 2023, No S 22-10.545, 22-11.099, 22-11.100). This clarification is consistent with precedents, the French Supreme Court having previously confirmed the approach taken by the Paris Court of Appeal that rejected the application of the WACC method on the grounds that the claimant had “failed to demonstrate that the non-availability of the sums it was deprived of had led it either to restrict its activity without being able to find alternative financing through loans or equi - ty, or to abandon duly identified investment projects that were likely to yield the equivalent of the aver - age cost of capital” (French Supreme Court, 1 March 2023, No 20-18.356 and 20-20.416). In another case, the Paris Court of Appeal ruled that – unless it can be presumed that the victim company was deprived of the opportunity to invest the sums as a result – the application of the WACC to a failed project requires prior proof that the project could not be carried out because of the unavailability of capital. The WACC includes a component remunerating the risk so that it does not apply to known and determined past flows when no alternative investment is proved to have been lost. Therefore, the “hazardous” listing of projects that are not proven to have been thoroughly studied is not
sufficient for the application of the WACC (Paris Court of Appeal, 23 February 2022, No 19/19239).
9. Liability and Contribution 9.1 Joint and Several Liability
Ordinance No 2017-303 created, by law, a principle of joint and several liability between undertakings found to have breached competition law. For all claims fall - ing outside the scope of Ordinance No 2017-303, the general standards of French tort law – and, in par - ticular, of Article 1240 of the French Civil Code – are applicable. On these grounds, French courts may find that the co-authors of a breach of competition law are liable in solidum towards victims of anti-competitive practices. French law distinguishes joint and sev - eral liability ( responsabilité solidaire ), which can only be based on legal or conventional provisions (Arti - cle 1310 of the French Civil Code), from in solidum liability, which may only be ordered by courts in the absence of a legal textual basis. Under the new regime of joint and several liability introduced by Ordinance No 2017-303, leniency appli - cants benefiting from a total exemption from fines are only required to compensate the harm caused to their direct or indirect contracting parties. They may still be liable to other victims if such victims are unable to obtain full compensation from the other infringers (Article L481-11 of the FCC). In the particular situation where the assets of a com - pany sanctioned for abuse have been transferred by way of a partial transfer of assets, the French Supreme Court has clarified that it is the company operating the business in question at the time when the infringement was perpetrated that is liable – rather than the benefi - ciary company, which should be exonerated (French Supreme Court, 20 March 2024, No S 22-11.648). 9.2 Contribution Under French law, contribution proceedings against a third party may be brought by means of a writ of summons aiming to implead said third party by forced intervention ( intervention forcée ) (Article 331 of the FCPC). The right to initiate requests for bringing con - tribution proceedings is not reserved to the parties.
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