France: France Becomes An Attractive Forum For Antitrust Follow-On Damages Claims

Last Updated: 12 April 2017
Article by Marc Lévy, Natasha Tardif, Lucile Chneiweiss and Elise Massé

Most Popular Article in France, April 2017

Companies often associate competition rules with public enforcement. However, competition law can also be a source of compensation. The new French Order and Decree, which together implement Directive 2014/104/EU on actions for damages for infringements of competition law provisions, simplify the task victims of infringements of competition law face when they claim damages by creating a number of presumptions in their favour.

Competition authorities, including the French Competition Authority (the FCA), impose increasingly heavy fines on companies that infringe competition rules. In parallel to this, private claims aimed at repairing the harm suffered by the victims of anti-competitive practices exist, but until now such claims have not been made to the extent possible.

However, a framework for private claims for damages in France has now been provided by Order No. 2017-303 of 9 March 2017 (the Order) and its supplemental decree (the Decree).

These rules are aimed at increasing the efficiency of private enforcement of competition rules and, therefore, ensuring full compensation of the victims of anti-competitive practices. However, they also try to set an appropriate balance between such private enforcement and effective public enforcement of competition law by competition authorities.

Proof of infringement

Anti-competitive practices are irrefutably presumed to be established for the purposes of an action for damages when they are found to exist by a final decision of the FCA (i.e., the decision has been confirmed by the Paris Court of Appeal or has not been subject to a request for annulment) or by the EU Commission.

Decisions of other Member States' competition authorities can be used as prima facie evidence of anti-competitive behaviour.


It is presumed under this regime that cartel infringements cause harm, although this presumption is rebuttable by the cartelists.

The Order also states that the harm suffered by a victim can include (i) any loss incurred (mainly as a result of overcharges); (ii) any loss of profit; (iii) any loss of opportunity; and (iv) any non-financial loss.

Damages are assessed on the day of the decision and must take into account all circumstances affecting the value of the loss suffered. It includes the time that has elapsed since the loss occurred and, therefore, any interest due since then.

The sole provision on the quantification of damages is provided by the Decree. French courts may ask for the FCA's opinion on such quantification; however, the FCA is not required to respond to the courts' request.

Opening a way for the FCA to express an opinion on the quantification of damages represents a surprising and innovative approach, one which may generate lively debate as it raises the question of the connection between the quantification of the harm suffered and the analysis of the damage to the economy by the FCA. Until now, the damage to the economy has always been strictly distinguished from the harm suffered by the victims of anti-competitive practices.

Passing-on defence

Direct or indirect purchasers are now presumed not to have passed on any overcharge to their own customers. This presumption can, however, be rebutted by the defendant. This puts an end to previous and contradictory French case-law on this issue.

Joint and several liability

Infringing companies will be held jointly and severally liable to repair the harm suffered in proportion to the gravity of their respective offences. However, the Order provides for exceptions for small and medium-sized companies, as well as leniency applicants.

Disclosure of evidence

The rules regarding the disclosure of evidence are aimed at balancing the right of victims of anti-competitive practices to be fully compensated, on the one hand, and, on the other hand, the protection of confidential information and requirements to ensure successful public enforcement by competition authorities.

A judge may now order the communication not only of identified pieces of evidence but also of categories of evidence, whereas previously only access to specific documents could be granted.
Prior to the Order, the disclosure of evidence by the FCA was already subject to conditions, as the FCA could refuse to disclose leniency documents and evidence which could reasonably be provided by a party to the damages proceedings.

The Order now provides that a court cannot order the FCA, the European Commission or any competition authority of another Member State to disclose evidence if a party to the proceedings or a third party may reasonably provide this evidence. In addition, disclosure of evidence cannot be ordered until the proceedings before the competition authority are terminated.

Regarding a party's disclosure of evidence from a competition authority's files, it seems that existing case-law will continue to apply, i.e., the French judge will assess on a case-by-case basis whether the disclosure is necessary to ensure the rights of defence of the party making the disclosure are protected.

Finally, judges cannot order the disclosure of written statements, or transcripts of oral statements, made by a leniency applicant or by any party that does not seek to dispute the objections of the FCA against it. However, if the judge needs to examine this evidence, they can do so without communicating it to the other parties to the proceedings. This prohibition is narrower than under previous rules, which covered all leniency documents.

Limitation period

The five-year limitation period complies with general rules under French civil law.

The Order provides further clarification regarding the starting point of the limitation period, i.e., the time when the victim becomes aware of, or ought to have become aware of (i) the facts giving rise to the relevant anti-competitive practice and the nature of that practice; (ii) the fact that the anti-competitive practice has caused harm; and (iii) the identity of at least one of the companies responsible for the practice.

In addition, the limitation period starts only if the anti-competitive practice has ended.

The limitation period is interrupted by any act of the FCA carried out for the purposes of investigating, establishing or sanctioning the relevant anti-competitive practice.

Entry into force

The Order entered into force on 11 March 2017. However, the provisions regarding disclosure apply retroactively to proceedings brought on or after 26 December 2014.

How Reed Smith can help

Reed Smith's EU, Competition & Regulatory team in Paris can assist clients with actions for damages resulting from anti-competitive practices, such as cartels or abuses of dominant position.

Reed Smith represents clients regularly on antitrust investigations and stand-alone or follow-on actions for damages before the FCA, the European Commission and French commercial courts.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.