Private Litigation 2017

Last verified on Friday 15th September 2017

France

Julie Catala Marty
Franklin

    Effect of public proceedings

  1. 1.

    What is your country’s primary competition authority?

  2. The primary body in charge of competition law enforcement in France is the Autorité de la concurrence, which is abbreviated below as FCA for French Competition Authority.

    The FCA has the power to enforce both French (articles L.420-1 and seq of the French Commercial Code) and European competition law (articles 101 and 102 of the TFEU).

  3. 2.

    Does your competition authority have investigatory power? Can it bring criminal proceedings based on competition violations?

  4. The FCA has strong and intrusive investigatory power. The FCA can investigate any complaint related to anti-competitive practices brought to it but also initiate ex officio investigations (“exploratory investigations”).

    Pursuant to article L.450-3 of the French Commercial Code, the FCA’s investigators may carry out “simple investigations” and request disclosure of and take or obtain copies of any document located in business premises, but they are not allowed to search the premises themselves.

    Pursuant to article L.450-4 of the French Commercial Code, the FCA may also seek a court order allowing it to use more extensive investigative measures in an “extensive investigation”. Under court supervision, the FCA’s agents may conduct dawn raids, search any private residence or business premises and seize any documents, on whatever media (paper, hard disk, network, etc), falling within the scope of the court order. 

    Criminal enforcement of competition law is within the purview of French criminal courts. However, where the FCA’s investigation reveals that a person may have played a significant role in devising, organising or committing a competition law infringement (article L.420-6 of the French Commercial Code), the FCA may refer the matter to the State Counsel for prosecution (article L.462-6 of the French Commercial Code).

  5. 3.

    Can private antitrust claims proceed parallel to investigations and proceedings brought by competition authorities and criminal prosecutors and appeals from them?

  6. Damage claims brought in civil or commercial courts can proceed parallel to investigations and proceedings brought by the FCA and appeals from them.

    Stand-alone actions should be distinguished from follow-on actions. The latter can be brought even if the FCA has not adopted an infringement decision, while the former require a final infringement decision by the FCA.  

    Damage claims can also proceed parallel to proceedings brought before criminal courts and appeal from their decisions.

  7. 4.

    Is there any mechanism for staying a stand-alone private claim while a related public investigation or proceeding (or an appeal) is pending?

  8. Recital 44 of Directive 2014/104/EU on antitrust damage actions (26/11/2014) suggests that national courts may stay a stand-alone action for damages until the competition authority has issued a final decision 

    The directive was enacted into French law under articles L.481-1 and seq. of the French Commercial Code.

    However, that recital was not enacted into French law, so that there is no mechanism imposing or encouraging civil courts to stay proceedings while a related public investigation or proceeding is pending. 

    French courts can nonetheless, at their discretion, decide to stay the proceedings where required for the proper administration of justice.

  9. 5.

    Are the findings of competition authorities and court decisions binding or persuasive in follow-on private antitrust cases? Do they have an evidentiary value or create a rebuttable presumption that the competition laws were violated? Are foreign enforcers’ decisions taken into account? Can decisions by sector-specific regulators be used by private claimants?

  10. Article L.481-2 of the French Commercial Code specifies the evidentiary value of competition authorities’ decisions:

    • A final decision of the FCA establishing a violation of competition law serves as irrefutable evidence in follow-on private antitrust cases regarding the infringement of competition law. The decision is considered final once it is no longer open to appeal as far as it concerns the finding of a breach of competition law;
    • Although European Commission’s decisions do not constitute irrefutable evidence, the Article states that French courts cannot hand down decisions running counter to a decision of the European Commission, which therefore has a very strong evidentiary value;
    • Other member states’ competition authorities’ decisions constitute a means of proving a breach of competition law.  

    French sector-specific regulators have no jurisdiction to establish a violation of competition law. However, private claimants may submit their decisions to the judge.

  11. 6.

    Do immunity or leniency applicants in competition investigations receive any beneficial treatment in follow-on private antitrust cases?

  12. Leniency programmes are considered as important tools for the public enforcement of competition law as they contribute to the detection and efficient prosecution of anticompetitive practices. In order not to deter undertakings from cooperating with competition authorities under such programmes, French law provides two main advantages for leniency applicants in follow-on private antitrust cases:

    • The judge cannot demand access to documents obtained through a leniency program (see A7);
    • Pursuant to article L.481-9 of the French Commercial Code, where there are several infringing parties, they are all jointly and severally liable. Nonetheless, pursuant to article L.481-11 of the French Commercial Code, full immunity recipients are liable only for the damage caused to their direct or indirect contracting parties unless the other claimant(s) cannot obtain full compensation from the other infringers. In this case, however, their contribution cannot exceed the amount of the damage caused to their own direct or indirect purchasers (article L.481-12 of the French Commercial Code).
  13. 7.

    Can plaintiffs obtain access to competition authority or prosecutors’ files or the documents the authorities collected during their investigations? How accessible is information prepared for or during public proceedings by the authority or commissioned by third parties?

  14. Where disclosure is necessary to solve the dispute, plaintiffs may obtain access to a competition authority’s files (the FCA, the European Commission or another member state’s competition authorities), subject to limitations:

    • French courts cannot compel the competition authority to disclose documents which either a party or a third party is reasonably able to provide (article L.483-4 of the French Commercial Code); 
    • the following evidence cannot be accessed by plaintiffs until the competition authority has concluded its proceedings (article L.483-8 of the French Commercial Code):
       
    • information that was prepared by a natural or legal person specifically for the proceedings;
       
    • information that the competition authority has drawn up and sent to the parties in the course of its proceedings; and
       
    • settlement submissions that have been withdrawn; and
       
    • plaintiffs can never access information collected as part of a leniency application or contained in a settlement submission (article L.483-5 of the French Commercial Code).

    Moreover, where plaintiffs may obtain access to a competition authority’s files, French law provides for certain safeguards to preserve trade secrets (article L.483-2 of the French Commercial Code) (see question 10).

  15. 8.

    Is information submitted by leniency applicants shielded from subsequent disclosure to private claimants?

  16. As explained in question 7, information submitted by leniency applicants is shielded from disclosure.

  17. 9.

    Is information submitted in a cartel settlement protected from disclosure?

  18. As explained in question 7, information contained in a settlement submission is shielded from disclosure.

  19. 10.

    How is confidential information or commercially sensitive information submitted by third parties in an investigation treated in private antitrust damages claims?

  20. French law provides for certain safeguards to preserve trade secrets (articles L.483-2 and L.483-3 of the French Commercial Code).

    In order to protect confidential information or commercially sensitive information, the judge can, ex officio or at the request of the parties, depart from certain fundamental principles of civil proceedings, such as the adversarial principle or the principle that court decisions should be made public 

    For instance, the judge may compel disclosure of a document while concealing any confidential information it may contain, or even restrict access to a document.

    Confidential information or commercially sensitive information submitted by third parties in an investigation by the FCA is protected by these safeguards.

    Commencing a private antitrust action

  21. 11.

    On what grounds does a private antitrust cause of action arise?

  22. Private antitrust actions can be based on any violation of competition law provisions on cartels, abuse of a dominant position, abuse of economic dependency, allocation of exclusive importation rights in the French overseas territories, and any agreements or practices relating to transportation and predatory prices (articles L.420-1 to L.420-5 of the French Commercial Code and articles 101 and 102 TFUE).

  23. 12.

    What forms of monetary relief may private claimants seek?

  24. In accordance with the general principles governing French liability actions, claimants may seek full compensation for the damage suffered. Under article L.481-3 of the French Commercial Code, damage is non-exhaustively defined as: 

    • loss incurred due to an overcharge or an underpayment resulting from anti-competitive practices;
    • loss of profit resulting from a reduction in sales volumes due to anticompetitive practices;
    • loss of opportunity; and
    • non-pecuniary loss.

    Damages are calculated on the date of the court’s decision.

  25. 13.

    What forms of non-monetary relief may private claimants seek?

  26. Plaintiffs can request that court cancel their agreement with the defendant or issue injunctions compelling the defendant to resume business relations, grant access to essential facilities, etc.

  27. 14.

    Who has standing to bring claims?

  28. Pursuant to the general principles governing French liability actions, anyone who has suffered harm caused by an infringement of competition rules can claim compensation. 

    Therefore, plaintiffs may be private companies, natural person or even public bodies.

    French law also contains specific provisions governing actions brought by consumer associations for breach of competition rules (see question 48 and seq.).

  29. 15.

    In what fora can private antitrust claims be brought in your country?

  30. Claims can be brought in civil or commercial courts, whose jurisdiction is determined using three criteria: subject-matter jurisdiction, personal jurisdiction and territorial jurisdiction (ratione materiae, ratione personae and ratione loci).

    First, article L.420-7 of the French Commercial Code provides that only certain civil and commercial courts have jurisdiction over private antitrust claims (namely, those in Marseille, Bordeaux, Lille, Fort-de-France, Lyon, Nancy, Paris and Rennes). 

    Then, jurisdiction is determined based on the claimants’ status: eight commercial courts have jurisdiction over traders and craftsmen (Appendix 4-2 of the French Commercial Code), and eight first-level civil courts (Tribunal de grande instance) have jurisdiction over consumers, farmers, professional services (Appendix 4-1 of the French Commercial Code).

    Territorial jurisdiction is considered last.

    Only the Paris Court of Appeal has appellate jurisdiction over decisions of civil and commercial courts (article R.420-5 of the French Commercial Code). 

    It is worth noting that administrative courts have jurisdiction over claims concerning anticompetitive damages related to an administrative contract.

  31. 16.

    What are the jurisdictional rules? If more than one forum has jurisdiction, what is the process for determining where the claims are heard?

  32. In purely domestic disputes, claimants must use the tests described in question 15.

    If more than one forum has jurisdiction, the plaintiff may choose one of them.

    If the dispute has a relevant international element, the process for determining where the claim may be heard is governed either by French international private law or European international private law, depending on whether there are connecting factors with third countries or EU member states.

  33. 17.

    Can claims be brought based on foreign law? If so how does the court determine what law applies to the claim?

  34. Claims can be brought based on foreign law.

    If the claim has a relevant international element, foreign law may be applicable according to French international private law and European international private law, depending on whether there are connecting factors with third countries or EU member states.

  35. 18.

    Give details of any preliminary requirement for starting a claim. Must plaintiffs post security or pay a filing fee? How is service of claim affected?

  36. There is no such requirement.

  37. 19.

    What is the limitation period for private antitrust claims?

  38. For stand-alone actions as well as follow-on actions, the limitation period is five years (see question 21 for further details regarding the starting point of the limitation period).

  39. 20.

    Are those time limits procedural or part of the substantive law? What is the effect of their expiry?

  40. Those time limits are regarded as procedural. Pursuant to article 122 of the French Code of Civil Procedure, where the time limit for action has expired, the action must be struck out altogether.

  41. 21.

    When does the limitation period start to run?

  42. For private antitrust claims, the limitation period starts to run on the day the plaintiff became or should have become aware of, cumulatively:

    • an unlawful practice and the fact that it constitutes a violation of competition law;
    • the fact that the practice harms the claimant; and
    • the identity of at least one of the persons engaged in the unlawful practice.

    In any case, the limitation period cannot start before the anticompetitive practice has ended.

    Specific rules govern the starting point of the limitation period as regards total immunity recipients under a leniency programme, which is postponed until its victim is able to pursue the co-authors of the anticompetitive practice.

  43. 22.

    What, if anything, can suspend the running of the limitation period?

  44. Directive 2014/104/EU as enacted into French law provides that the limitation period is suspended as soon as the FCA, the competition authority of any other EU member state or the European Commission takes any action to investigate, establish or punish the relevant anticompetitive practices. 

    The limitation period is suspended until the decision of the relevant competition authority or appellate court is no longer open to any ordinary form of appeal (article L.462-7 of the French Commercial Code).

  45. 23.

    What pleading standards must the plaintiff meet to start a stand-alone or follow-on claim?

  46. The plaintiff must have a summons served on the defendant. It must include certain information about the parties (identification and place of residence/address for service of process, etc) as well as the subject matter of the proceedings, meaning in practice a description of the facts, the legal grounds for the action and the claims of the plaintiff.

  47. 24.

    What must plaintiffs show for the court to grant interim relief?

  48. Interim relief can be granted on several grounds:

    • in urgent matters, where no serious challenge is raised (articles 808 and 872 of the French Code of Civil Procedure); and
    • to avoid any imminent damage or abate a manifestly illegal nuisance (articles 809§1 and 873§1 of the French Code of Civil Procedure);

    Interim payment can be granted where the defendant does not raise any serious challenge (articles 809§2 and 873§2 of the French Code of Civil Procedure).

    Judges tend to apply these provisions rather strictly, therefore interim relief/payment is rarely granted in private antitrust claims.

  49. 25.

    What options does the defendant have in responding to the claims and seeking early resolution of the case (eg, answer, counterclaim, motion to dismiss, summary judgment)?

  50. Private antitrust claims are a liability action.

    Therefore, as in any litigation, procedural defence may be used to effectively defend antitrust actions.

    French procedural law provides for a wide range of defences that may substantially delay or even compromise liability actions, including, without limitation, motions challenging the court’s subject-matter, personal or territorial jurisdiction (see question 15), or motions to dismiss the action as time barred under article 122 of the Code of Civil Procedure.

    Another option is to defend the claim on the merits, including by disputing the existence of any wrongdoing, damage, and causal link between the two. However, it is necessary to distinguish between follow-on and stand-alone actions.

    In follow-on actions, the existence of a wrongdoing is hardly disputable since a prior FCA decision would create an irrefutable presumption that a violation has been committed. Therefore, the debate would focus on the damage, often with the support of economic experts (see question 31), and causal link.

    In stand-alone actions, there is no presumption to help the claimant meet his burden of proof.

    Disclosure/discovery

  51. 26.

    What types of disclosure/discovery are available? Describe any limitations.

  52. Pursuant to the French Code of Civil Procedure, a plaintiff is entitled to request disclosure if it is necessary to solve the dispute, provided the judge is able to identify the documents precisely enough (article 138 and seq.).

    Regarding antitrust claims, article L.483-1 of the French Commercial Code states that the judge should take into account the interests of the parties and third parties and maintain a balance between the plaintiff’s right to full compensation and the protection of confidential information.

    The French disclosure rules provide for certain specific safeguards (see question 7 and seq.):

    • the preservation of trade secrets: when disclosing a document containing trade secrets, all measures must be taken to prevent access to the secret information; 
    • some information can never be disclosed:
    • information collected as part of an application for leniency; and
    • information contained in a settlement submission.

     

  53. 27.

    How do the courts treat confidential information that might be required to be disclosed or that is responsive to a discovery proceeding? Is such information treated differently for trial?

  54. French discovery proceedings are adversarial, which means that both parties must be given access to the same information.

    Nonetheless, courts must also ensure the preservation of confidential information.

    Therefore, if a document containing confidential information is strictly necessary for the resolution of the dispute, the court must take all necessary measures to protect such information, including by deciding, at the request of the parties or even ex officio, to depart from the adversarial principle.

  55. 28.

    What protection, if any, do your courts grant attorney–client communications or attorney materials? Are any other forms of privilege recognised?

  56. Attorney-client communications are privileged and cannot be disclosed without the client’s consent. A party to a lawsuit can however decide to produce these communications at its own discretion.

    Trial

  57. 29.

    Describe the trial process.

  58. Before commercial first instance courts, proceedings are oral. However, the parties usually file written submissions (claim or defence).

    Procedural hearings take place at which the judge sets the deadline for the parties to submit their pleadings.

    When the parties have no further submissions to file, a hearing for oral arguments takes place, during which attorneys argue the case before the court.

    Finally, the court hands down its judgment which is subject to appeal (under one month in ordinary appeals).

  59. 30.

    How is evidence given or admitted at trial?

  60. The governing principle is that of freedom of proof. Therefore, both the defendant and the claimant may submit oral (testimonies) or written (contracts, emails, etc) proof.

    One restriction, established by case law, is that the proof must be lawful.

  61. 31.

    Are experts used in private antitrust litigation in your country? If so, what types of experts, how are they used, and by whom are they chosen or appointed?

  62. Litigants usually produce economic expert opinions to substantiate or challenge damage and causation claims.

    The judge can also appoint an independent expert to investigate and report on any factual issues on which the judge needs expert advice. However, the judge is not bound by the expert’s findings.

  63. 32.

    What must private claimants prove to obtain a final judgment in their favour?

  64. In stand-alone actions, claimants must prove that a violation of competition rules took place, that they suffered damage and that there is a causal link between the violation and the damage suffered.

    In follow-on actions, a violation of competition rules is irrefutably presumed once its existence and its imputation are established by a final decision of the FCA (see question 5). Claimants must therefore only prove damage and causation.

  65. 33.

    Are there any defences unique to private antitrust litigation (eg, Noerr-Pennington defence, passing-on defence)? If so, which party bears the burden of proving these defences?

  66. In French private antitrust litigations, the passing-on defence may be invoked, but the burden of proof is in favour of the claimant.

    On the one hand, pursuant to article L.481-4 of the French Commercial Code, the defendant’s direct and indirect purchasers are presumed not to have passed on to their contracting parties the overcharge resulting from the infringement. Therefore, it is up to the defendant to prove that the potential overcharge has been passed on.

    On the other hand, article L.481-5 of the French Commercial Code provides that an indirect purchaser claiming to have suffered an overcharge is deemed to have proved passing-on if:

    • the defendant violated competition law;
    • the defendant’s direct purchaser was overcharged as a result of the violation; and
    • the indirect purchaser bought from the defendant’s direct purchaser products or services affected by the violation.
  67. 34.

    How long do private antitrust cases usually last (not counting appeals)?

  68. Antitrust private cases usually last around two years or more. The enactment into French law of Directive 2014/104/EU on antitrust damage actions could help shorten this duration in the future.

  69. 35.

    Who is the decision-maker at trial?

  70. In private antitrust cases, the decision-maker is a single judge. However, parties may and usually do request a three-judge panel.

    Damages, costs and funding

  71. 36.

    What is the evidentiary burden on plaintiffs to quantify the damages?

  72. The burden of proving the existence and amount of the damage is borne by the plaintiff, who may submit expert reports to substantiate his claims (see question 31).   

  73. 37.

    How are damages calculated?

  74. Damages can be calculated using different methods, depending on the nature of the competition law violation (cartel pricing, abuse of dominant position, etc).

    For example, damage resulting from cartel pricing can be calculated as the difference between the price actually paid and the price that would have been charged in the absence of a cartel.  

    Article R.481-1 of the French Commercial Code provides that the judge may seek advice from the FCA on the relevant methods for assessing damages.

  75. 38.

    Does your country recognise joint and several liabilities for private antitrust claims?

  76. Pursuant to article L.481-9 of the French Commercial Code, if several undertakings participated in the violation, they are deemed jointly and severally liable and contribute in proportion to the gravity of their respective offences and their role in causing the damage.

  77. 39.

    Can a defendant seek contribution or indemnity from other defendants, including leniency applicants, or third parties? Does the law make a clear distinction between contribution and indemnity in antitrust cases?

  78. The defendant who has fully indemnified a claimant may take action against other infringers who will share liability in proportion to “the gravity of their respective offences and their role in causing the damage” (article L.481-9 of the French Commercial Code).

    French law provides for two exceptions:

    • Pursuant to article L.481-10 of the French Commercial Code, Small and Medium-sized Enterprises (SMEs) are liable only to their own direct and indirect purchasers if:
    • They had a market share of less than 5 per cent at the time of the violation of competition law; and
    • The enforcement of standard joint and several liability rules would irretrievably jeopardise their continued business operation and cause their assets to lose all their value.
    • Pursuant to article L.481-11 of the French Commercial Code full immunity recipients are liable only for the damage caused to their direct or indirect contracting parties unless the other claimant(s) cannot obtain full compensation from the other infringers. In this case, however, their contribution cannot exceed the amount of the damage caused to their own direct or indirect purchasers (article L.481-12 of the French Commercial Code).
  79. 40.

    Can prevailing parties recover attorneys’ fees and court costs? How are costs calculated?

  80. Pursuant to the French Code of Civil Procedure, the court may award all or part of court costs (article 696) and the prevailing party’s attorney fees (article 700) against the losing party. 

    Court costs are listed under article 695 of the French Code of Civil Procedure.

    This award is at the court’s discretion. The court may consider equity and the financial situation of the losing party. It is worth noting that the amount awarded is usually relatively low.

  81. 41.

    Are there circumstances where a party’s liability to pay costs or ability to recover costs may be limited?

  82. The parties are bound by the discretionary ruling of the court regarding the award of costs and attorney fees.

  83. 42.

    May attorneys act for claimants on a contingency or conditional fee basis? How are such fees calculated?

  84. Success fees may be agreed in addition to fees for services provided (flat or hourly fees for instance). According to a recommendation from the French National Bar Association, any additional fees contingent on the outcome of the trial should not exceed 10 per cent of the sum awarded to the client.

    Attorneys have to enter into a written fee agreement with their clients.

  85. 43.

    Is litigation funding lawful in your country? May plaintiffs sell their claims to third parties?

  86. Although litigation funding is unusual in France, it is not prohibited. This practice is mostly confined to arbitration proceedings.

    The French National Bar Association issued a report on February 2017, setting out the principles governing this practice. The key issues are:

    • the preservation of attorney-client privilege: the attorney may not disclose privileged information to a third party, but only to his client, who may then decide to pass it on to the third party; and
    • the avoidance of any conflict of interests: in the specific case of arbitration, attorneys should encourage their clients to disclose the existence of third-party funding to the arbitrator.
  87. 44.

    May defendants insure themselves against the risk of private antitrust claims? Is after-the-event insurance available for antitrust claims?

  88. Insurance policy regarding private antitrust claims/after-the-event claims are not developed in France.

    Appeal

  89. 45.

    Is there a right to appeal or is permission required?

  90. There is a right to appeal and no permission is required.

    Pursuant to article 538 of the French Code of Civil Procedure, in ordinary appeals, the time limit is one month.

  91. 46.

    Who hears appeals? Is further appeal possible?

  92. Appeals are heard by the Court of Appeal of Paris (see question 15), whose decision may be challenged before the Court of Cassation, France’s highest appellate court.

  93. 47.

    What are the grounds for appeal against a decision of a private enforcement action?

  94. Lower court judgements can be challenged on the grounds of an error of fact or an error of law. Appeals have a devolutive effect and the Court of Appeal must rule over the matters of fact and law that are the subject of the appeal. 

    Decisions of the Court of Appeal can only be challenged on the grounds of an error of law.

    Collective, representative and class actions

  95. 48.

    Does your country have a collective, representative or class action process in private antitrust cases?

  96. France has a form of collective action called action en représentation conjointe (which literally translates as joint representation action) (article L.622-1 of the Consumer Code).

    This action was introduced in 1992 and offers consumer associations the opportunity to defend the individual interests of consumers, provided they are engaged by at least two consumers. 

    However, the many restrictions on taking this type of legal action, in particular the prohibition of direct solicitations of the consumers, seem to explain why it eventually fell into disuse.

    As a better alternative, class actions were introduced into French law in 2014.

  97. 49.

    Who can bring these claims? Can consumer associations bring claims on behalf of consumers? Can trade or professional associations bring claims on behalf of their members?

  98. Class actions can only be brought by nation-wide consumer associations approved pursuant to article L.811-1 of the French Consumer Code (there are currently 15 such associations).

    Once a competition authority has issued a decision establishing a violation of competition rules, consumer associations can bring a class action seeking compensation on behalf of consumers affected by the anticompetitive practice.

    As explained in question 48, consumer associations can also bring a joint representation action, but rarely do so.

  99. 50.

    What is the standard for establishing a class or group?

  100. A group is established where at least two consumers placed in the same or a similar situation have suffered a loss as a result of a violation of competition law by a professional.

  101. 51.

    Are there any other threshold criteria that have to be met?

  102. There are no other threshold criteria to be met.

  103. 52.

    How are damages or settlements distributed?

  104. The infringer must compensate each individual consumer who has suffered a loss, subject to any conditions, limits and deadlines imposed by the court (article L.623-5 of the French Consumer Code).

    Damages may be distributed either equally among the consumers or according to the type of loss suffered.

  105. 53.

    Describe the process for settling these claims, including how damages or settlement amounts are apportioned.

  106. In its decision, the court determines the judgement of the professional, the type of consumers who can join the class action, the amount of damages to be paid to each consumer (or each category of consumers within the group) or the method for determining said amount (articles L.623-4 and seq. of the French Consumer Code).

    Public notice of the decision must be given so that any other consumers who meet this description can join the class action and be compensated.

  107. 54.

    Does your country recognise any form of collective settlement in the absence of such claims being made? If so, how are such settlements given force and can such arrangements cover parties from outside the jurisdiction?

  108. There can be no collective settlement in the absence of a class action or a joint representation action.

  109. 55.

    Can a competition authority impose mandatory redress schemes or allow voluntary redress schemes?

  110. The FCA cannot impose redress schemes.

    Arbitration and ADR

  111. 56.

    Are private antitrust disputes arbitrable under the laws of your country?

  112. The use of arbitration for private antitrust actions is allowed under French law.

  113. 57.

    Will courts generally enforce an agreement to arbitrate an antitrust dispute? What are the exceptions?

  114. Article 1448 of the French Code of Civil Procedure provides that courts do not have jurisdiction to rule on disputes between parties having concluded an agreement to arbitrate, unless the arbitral tribunal has not been seized yet and the arbitration agreement is manifestly void or inapplicable.

  115. 58.

    Will courts compel or recommend mediation or other forms of alternative dispute resolution before proceeding with a trial? What role do courts have in ADR procedures?

  116. Judges may recommend, but not compel, any form of ADR throughout the trial.

    Advocacy

  117. 59.

    Describe any notable attempts by policymakers to increase knowledge of private competition law and to facilitate the pursuit of private antitrust claims?

  118. On 23 March 2017, the French Minister of Justice published a ruling describing and explaining the enactment of Directive 2014/104/EU on damages into the French Commercial Code.

    Other

  119. 60.

    Give details of any notable features of your country’s private antitrust enforcement regime not covered above.

  120. Not applicable.

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Questions

    Effect of public proceedings

  1. 1.

    What is your country’s primary competition authority?


  2. 2.

    Does your competition authority have investigatory power? Can it bring criminal proceedings based on competition violations?


  3. 3.

    Can private antitrust claims proceed parallel to investigations and proceedings brought by competition authorities and criminal prosecutors and appeals from them?


  4. 4.

    Is there any mechanism for staying a stand-alone private claim while a related public investigation or proceeding (or an appeal) is pending?


  5. 5.

    Are the findings of competition authorities and court decisions binding or persuasive in follow-on private antitrust cases? Do they have an evidentiary value or create a rebuttable presumption that the competition laws were violated? Are foreign enforcers’ decisions taken into account? Can decisions by sector-specific regulators be used by private claimants?


  6. 6.

    Do immunity or leniency applicants in competition investigations receive any beneficial treatment in follow-on private antitrust cases?


  7. 7.

    Can plaintiffs obtain access to competition authority or prosecutors’ files or the documents the authorities collected during their investigations? How accessible is information prepared for or during public proceedings by the authority or commissioned by third parties?


  8. 8.

    Is information submitted by leniency applicants shielded from subsequent disclosure to private claimants?


  9. 9.

    Is information submitted in a cartel settlement protected from disclosure?


  10. 10.

    How is confidential information or commercially sensitive information submitted by third parties in an investigation treated in private antitrust damages claims?


  11. Commencing a private antitrust action

  12. 11.

    On what grounds does a private antitrust cause of action arise?


  13. 12.

    What forms of monetary relief may private claimants seek?


  14. 13.

    What forms of non-monetary relief may private claimants seek?


  15. 14.

    Who has standing to bring claims?


  16. 15.

    In what fora can private antitrust claims be brought in your country?


  17. 16.

    What are the jurisdictional rules? If more than one forum has jurisdiction, what is the process for determining where the claims are heard?


  18. 17.

    Can claims be brought based on foreign law? If so how does the court determine what law applies to the claim?


  19. 18.

    Give details of any preliminary requirement for starting a claim. Must plaintiffs post security or pay a filing fee? How is service of claim affected?


  20. 19.

    What is the limitation period for private antitrust claims?


  21. 20.

    Are those time limits procedural or part of the substantive law? What is the effect of their expiry?


  22. 21.

    When does the limitation period start to run?


  23. 22.

    What, if anything, can suspend the running of the limitation period?


  24. 23.

    What pleading standards must the plaintiff meet to start a stand-alone or follow-on claim?


  25. 24.

    What must plaintiffs show for the court to grant interim relief?


  26. 25.

    What options does the defendant have in responding to the claims and seeking early resolution of the case (eg, answer, counterclaim, motion to dismiss, summary judgment)?


  27. Disclosure/discovery

  28. 26.

    What types of disclosure/discovery are available? Describe any limitations.


  29. 27.

    How do the courts treat confidential information that might be required to be disclosed or that is responsive to a discovery proceeding? Is such information treated differently for trial?


  30. 28.

    What protection, if any, do your courts grant attorney–client communications or attorney materials? Are any other forms of privilege recognised?


  31. Trial

  32. 29.

    Describe the trial process.


  33. 30.

    How is evidence given or admitted at trial?


  34. 31.

    Are experts used in private antitrust litigation in your country? If so, what types of experts, how are they used, and by whom are they chosen or appointed?


  35. 32.

    What must private claimants prove to obtain a final judgment in their favour?


  36. 33.

    Are there any defences unique to private antitrust litigation (eg, Noerr-Pennington defence, passing-on defence)? If so, which party bears the burden of proving these defences?


  37. 34.

    How long do private antitrust cases usually last (not counting appeals)?


  38. 35.

    Who is the decision-maker at trial?


  39. Damages, costs and funding

  40. 36.

    What is the evidentiary burden on plaintiffs to quantify the damages?


  41. 37.

    How are damages calculated?


  42. 38.

    Does your country recognise joint and several liabilities for private antitrust claims?


  43. 39.

    Can a defendant seek contribution or indemnity from other defendants, including leniency applicants, or third parties? Does the law make a clear distinction between contribution and indemnity in antitrust cases?


  44. 40.

    Can prevailing parties recover attorneys’ fees and court costs? How are costs calculated?


  45. 41.

    Are there circumstances where a party’s liability to pay costs or ability to recover costs may be limited?


  46. 42.

    May attorneys act for claimants on a contingency or conditional fee basis? How are such fees calculated?


  47. 43.

    Is litigation funding lawful in your country? May plaintiffs sell their claims to third parties?


  48. 44.

    May defendants insure themselves against the risk of private antitrust claims? Is after-the-event insurance available for antitrust claims?


  49. Appeal

  50. 45.

    Is there a right to appeal or is permission required?


  51. 46.

    Who hears appeals? Is further appeal possible?


  52. 47.

    What are the grounds for appeal against a decision of a private enforcement action?


  53. Collective, representative and class actions

  54. 48.

    Does your country have a collective, representative or class action process in private antitrust cases?


  55. 49.

    Who can bring these claims? Can consumer associations bring claims on behalf of consumers? Can trade or professional associations bring claims on behalf of their members?


  56. 50.

    What is the standard for establishing a class or group?


  57. 51.

    Are there any other threshold criteria that have to be met?


  58. 52.

    How are damages or settlements distributed?


  59. 53.

    Describe the process for settling these claims, including how damages or settlement amounts are apportioned.


  60. 54.

    Does your country recognise any form of collective settlement in the absence of such claims being made? If so, how are such settlements given force and can such arrangements cover parties from outside the jurisdiction?


  61. 55.

    Can a competition authority impose mandatory redress schemes or allow voluntary redress schemes?


  62. Arbitration and ADR

  63. 56.

    Are private antitrust disputes arbitrable under the laws of your country?


  64. 57.

    Will courts generally enforce an agreement to arbitrate an antitrust dispute? What are the exceptions?


  65. 58.

    Will courts compel or recommend mediation or other forms of alternative dispute resolution before proceeding with a trial? What role do courts have in ADR procedures?


  66. Advocacy

  67. 59.

    Describe any notable attempts by policymakers to increase knowledge of private competition law and to facilitate the pursuit of private antitrust claims?


  68. Other

  69. 60.

    Give details of any notable features of your country’s private antitrust enforcement regime not covered above.