Private Litigation

Last verified on Wednesday 15th July 2020

Private Litigation: France

Julie Catala Marty

Franklin

Effect of public proceedings

1. What is your country’s primary competition authority?

France

The primary body in charge of competition law enforcement is the French competition authority (FCA), which has the power to enforce both French (Article L.420-1 et seq of the French Commercial Code (CC)) and European competition law (Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU)).

Answer contributed by Julie Catala Marty

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

France

The FCA has strong and intrusive investigatory power. The FCA can investigate any complaint related to anticompetitive practices brought to it but also initiate ex officio investigations (exploratory investigations).

Pursuant to Article L.450-3 of the CC, 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 CC, 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, if an FCA investigation reveals that a person may have played a significant role in devising, organising or committing a competition law infringement (Article L.420-6, CC), the FCA may refer the matter to the State Counsel for prosecution (Article L.462-6, CC).

Answer contributed by Julie Catala Marty

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

France

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

Follow-on actions should be distinguished from stand-alone 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 (see question 5).

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

Answer contributed by Julie Catala Marty

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

France

Recital 44 of Directive 2014/104/EU on antitrust damages actions (the Damages Directive) 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 Article L.481-1 et seq of the CC.

However, Recital 44 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 when required for the proper administration of justice.

Answer contributed by Julie Catala Marty

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?

France

Article L.481-2 of the CC 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 Decisions do not constitute irrefutable evidence, Article L.481-2 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.
  • Decisions by other Member States’ competition authorities 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.

Answer contributed by Julie Catala Marty

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

France

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. So as 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 programme (see question 7); and
  • pursuant to Article L.481-9 of the CC, where there are several infringing parties, they are all jointly and severally liable. Nonetheless, pursuant to Article L.481-11 of the CC, full immunity recipients are liable only for the damage caused to their direct or indirect contracting parties unless other claimants 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, CC).

Answer contributed by Julie Catala Marty

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?

France

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

  • French courts cannot compel the competition authority to disclose documents that either a party or a third party is reasonably able to provide (Article L.483-4, CC);
  • the following evidence cannot be accessed by plaintiffs until the competition authority has concluded its proceedings (Article L.483-8, CC):
    • 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 CC).

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, CC) (see question 10).

Answer contributed by Julie Catala Marty

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

France

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

Answer contributed by Julie Catala Marty

9. Is information submitted in a cartel settlement protected from disclosure?

France

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

Answer contributed by Julie Catala Marty

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

France

French law provides for certain safeguards to preserve trade secrets (Articles L.483-2 and L.483-3, CC).

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.

Answer contributed by Julie Catala Marty

Commencing a private antitrust action

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

France

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, CC and Articles 101 and 102, TFEU).

Answer contributed by Julie Catala Marty

12. What forms of monetary relief may private claimants seek?

France

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 CC, damage is non-exhaustively defined as:

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

Damages are calculated on the date of the court’s decision, taking into account any circumstances that have occurred since the first day of the manifestation of the damage, and the reasonably foreseeable evolution of the damage (Article L.481-8, CC).

Answer contributed by Julie Catala Marty

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

France

Plaintiffs can request that the court cancels their agreement with the defendant or issues injunctions compelling the defendant to resume business relations, grant access to essential facilities, among other things.

Answer contributed by Julie Catala Marty

14. Who has standing to bring claims?

France

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 persons or even public bodies.

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

Answer contributed by Julie Catala Marty

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

France

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 CC 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, CC) and eight first-level civil courts have jurisdiction over consumers, farmers and professional services (Appendix 4-1, CC; see also the decision of the Court of Cassation of 10 July 2018, No. 17-16365).

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, CC, confirmed by the decision of the Court of Cassation of 10 July 2018, No. 17-16365).

Note that administrative courts have jurisdiction over claims concerning anticompetitive damage relating to an administrative contract.

Answer contributed by Julie Catala Marty

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

France

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.

Answer contributed by Julie Catala Marty

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

France

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.

Answer contributed by Julie Catala Marty

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?

France

There is no such requirement.

Answer contributed by Julie Catala Marty

19. What is the limitation period for private antitrust claims?

France

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

Answer contributed by Julie Catala Marty

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

France

The time limits are regarded as procedural. Pursuant to Article 122 of the French Code of Civil Procedure (CCP), if the time limit for action has expired, the action must be struck out altogether.

Answer contributed by Julie Catala Marty

21. When does the limitation period start to run?

France

For private antitrust claims, the limitation period starts to run on the day the plaintiff became or should have become aware of, cumulatively (Article L.482-1, CC):

  • 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. The FCA’s decisions on interim measures cannot constitute the starting point of the limitation period (Paris Court of Appeal, 6 March 2019, Arkeos e.a. v. EDF, No. 17/21261).

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.

Answer contributed by Julie Catala Marty

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

France

The Damages Directive 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, CC).

Answer contributed by Julie Catala Marty

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

France

The plaintiff must have a summons served on the defendant. It must include certain information about the parties (identification and place of residence or 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.

Answer contributed by Julie Catala Marty

24. Is interim relief available? What must plaintiffs show for the court to grant interim relief?

France

Interim relief can be granted on several grounds:

  • in urgent matters, where no serious challenge is raised (Articles 808 and 872, CCP); and
  • to avoid any imminent damage or abate a manifestly illegal nuisance (Articles 809, Paragraph 1 and 873, Paragraph 1, CCP);

Interim payment can be granted when the defendant does not raise any serious challenge (Articles 809, Paragraph 2 and 873, Paragraph 2, CCP).

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

Answer contributed by Julie Catala Marty

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)?

France

Private antitrust claims are a liability action. Therefore, as in any litigation, procedural defence may be used effectively to 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 CCP.

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 or her burden of proof.

Answer contributed by Julie Catala Marty

Disclosure/discovery

26. What types of disclosure/discovery are available? Describe any limitations and the courts' usual practice in ordering disclosure/ discovery.

France

Pursuant to the French CCP, 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 et seq).

Regarding antitrust claims, Article L.483-1 of the CC 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 et 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.

Answer contributed by Julie Catala Marty

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?

France

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 private claim, 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 (Article L.483-2 et seq, CC).

Law No. 2018-670 of 30 July 2018 on the preservation of trade secrets introduced into French law a definition of what may be considered a trade secret (Article L.151-1, CC) as well as measures that can be adopted to protect such information during any civil or commercial trial (Article L.153-1 et seq, CC).

Answer contributed by Julie Catala Marty

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

France

Attorney–client communications are privileged and cannot be disclosed without the client’s consent. A party to a lawsuit, however, can decide to produce these communications at its own discretion. The premises of law firms and lawyers’ telephone conversations are also granted protection.

Answer contributed by Julie Catala Marty

Trial

29. Describe the trial process.

France

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

Procedural hearings then 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).

Answer contributed by Julie Catala Marty

30. How is evidence given or admitted at trial?

France

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.

Answer contributed by Julie Catala Marty

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?

France

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.

The unsuccessful party usually bears the costs relating to the use of experts.

Answer contributed by Julie Catala Marty

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

France

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 there need only to prove damage and causation.

For cartels, Article L.481-7 of the CC facilitates the proof of the causal link between the violation and the damage as it creates a rebuttable presumption that a cartel causes damage.

Answer contributed by Julie Catala Marty

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?

France

In 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 CC, 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 CC 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; or
  • the indirect purchaser bought from the defendant’s direct purchaser products or services affected by the violation.

Answer contributed by Julie Catala Marty

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

France

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

Answer contributed by Julie Catala Marty

35. Who is the decision-maker at trial?

France

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

Answer contributed by Julie Catala Marty

Damages, costs and funding

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

France

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

Answer contributed by Julie Catala Marty

37. How are damages calculated?

France

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

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 CC provides that the judge may seek advice from the FCA on the relevant methods for assessing damages.

The Paris Court of Appeal published, on October 2017, a method for the evaluation of economic damages resulting from anticompetitive behaviour.

On 1 July 2019, the European Commission issued guidelines for national courts on how to estimate the share of overcharge that was passed on to the indirect purchaser. These passing-on guidelines are meant to provide practical guidance to national courts and stakeholders by reference to the applicable legal context, the relevant economic theory and quantification methods in the specific passing-on context. The Commission’s Communication on quantification is accompanied by a more comprehensive and detailed practical guide drawn up by the Commission’s services. The aim of this practical guide is to offer assistance to both the national courts and to the parties involved in actions for damages, by making the information that is relevant for quantifying the harm caused by antitrust infringements more widely available. The guide illustrates and offers insights on the types of harm normally caused by anticompetitive practices. On top of that, it offers an overview of the main methods and techniques available to quantify such harm in practice.

Answer contributed by Julie Catala Marty

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

France

Pursuant to Article L.481-9 of the CC, 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.

Answer contributed by Julie Catala Marty

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?

France

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, CC).

French law provides for two exceptions:

  • Pursuant to Article L.481-10 of the CC, small and medium-sized enterprises 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 CC, full immunity recipients are liable only for the damage caused to their direct or indirect contracting parties unless other claimants 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, CC).

Answer contributed by Julie Catala Marty

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

France

Pursuant to the CCP, 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 CCP.

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

Answer contributed by Julie Catala Marty

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

France

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

Answer contributed by Julie Catala Marty

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

France

Success fees may be agreed in addition to fees for services provided (flat or hourly fees, for instance). According to a recommendation by 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. Attorney’s fees exclusively dependent on the outcome of a dispute are forbidden. A conditional fee can be reduced if it is excessive with regard to the services rendered.

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

Answer contributed by Julie Catala Marty

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

France

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 in 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 or her 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.

Answer contributed by Julie Catala Marty

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

France

Insurance cover regarding private antitrust claims or after-the-event claims has not been developed in France.

Answer contributed by Julie Catala Marty

Appeal

45. Is there a right to appeal or is permission required?

France

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

Pursuant to Article 538 of the CCP, in ordinary appeals, the time limit is one month.

Answer contributed by Julie Catala Marty

46. Who hears appeals? Is further appeal possible?

France

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.

Answer contributed by Julie Catala Marty

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

France

Lower court judgments 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.

Answer contributed by Julie Catala Marty

Collective, representative and class actions

48. Does your country have a collective, representative or class action process in private antitrust cases? How common are they?

France

France has a form of collective action known as a joint representation action (Article L.622-1, 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, would appear to explain why it eventually fell into disuse.

As a better alternative, class actions were introduced into French law in 2014 (Article L.623-1 et seq, CC).

Answer contributed by Julie Catala Marty

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?

France

Class actions can only be brought by nationwide consumer associations approved pursuant to Article L.811-1 of the 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.

Answer contributed by Julie Catala Marty

50. What is the standard for establishing a class or group?

France

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.

Answer contributed by Julie Catala Marty

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

France

There are no other threshold criteria to be met.

Answer contributed by Julie Catala Marty

52. How are damages or assessed in these types of actions?

France

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, Consumer Code).

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

Answer contributed by Julie Catala Marty

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

France

In its decision, the court determines the liability 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 consumer within the group) or the method for determining said amount (Article L.623-4 et seq, 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.

Answer contributed by Julie Catala Marty

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?

France

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

Answer contributed by Julie Catala Marty

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

France

The FCA cannot impose redress schemes.

Answer contributed by Julie Catala Marty

Arbitration and ADR

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

France

The use of (internal and international) arbitration for private antitrust actions is allowed under French law.

Answer contributed by Julie Catala Marty

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

France

Article 1448 of the CCP 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 yet been seised and the arbitration agreement is manifestly void or inapplicable.

Answer contributed by Julie Catala Marty

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?

France

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

Answer contributed by Julie Catala Marty

Advocacy

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

France

On 23 March 2017, the Minister of Justice published a ruling describing and explaining the enactment of the Damages Directive on damages into the CC. In October 2017, the Paris Court of Appeal published a paper on the method for the evaluation of economic damages resulting from anti­competitive behaviour.

Answer contributed by Julie Catala Marty

Other

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

France

Not applicable.

Answer contributed by Julie Catala Marty

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