France: Private Antitrust Litigation

Through private enforcement, victims of anti-competitive practices become ‘associates to the judiciary’: they play a crucial part in making fines imposed by competition authorities and courts more dissuasive given that infringers are now fully aware that a conviction for breach of antitrust law may be followed – if not preceded – by private damages actions. By and large, the right to compensation for victims in relation to a breach of law has been recognised as a principle of constitutional value based on tort law by the French Constitutional Court since 1982,1 in line with two famous rulings – in Courage and Manfredi2 – of the Court of Justice of the European Union (CJEU) regarding breach of antitrust law. French civil liability is divided into contract law (article 1147 of the French Civil Code)3 and tort law (articles 1382 and 1383 of this Code). Article 1382 provides that ‘any act of a person, which causes damages to another, shall oblige the person by whose fault it occurred, to compensate it’. Article 1383 states that ‘one shall be liable not only by reason of one’s acts, but also by reason of one’s imprudence or negligence’. As evidenced by this wording, breaches of antitrust law – articles L.420-1 and L.420-2 of the French Commercial Code,4 as well as the corresponding articles 101 and 102 of the Treaty on the Functioning of European Union (TFEU) – most frequently give place to actions brought on the grounds of article 1382 of the French Civil Code.