What types of conduct and causes of action can be relied upon as the basis of a competition damages claim?According to article L481-1 of the French commercial code, victims of infringements of national and/or UE competition rules, occurred after March 11, 2017 can claim damages from any legal and natural person that can be qualified as an undertaking, or association of undertakings. A competition damage claim can be brought based on articles L420-1 and L420-2, para. 1 of the French commercial code and/or articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU) prohibiting anticompetitive concerted practices (including cartels, restrictive horizontal or vertical agreements, and anticompetitive decisions of associations) and abuses of dominant position. In addition, private damage claims under article L481-1 may also be brought based on other infringements, which are close to anticompetitive practices but specifically prohibited under French law:
- abuses of economic dependency under article L420-2, para. 2,
- restrictive agreements on exclusive overseas import rights under article L420-2-1,
- restrictive agreements and practices in the transport sector under article L420-2-2, and
- abusive low pricing practices under article L420-5).
Also, pursuant to French corporate law (articles L223-22 and L225-251 of the French commercial code), executive directors of public limited companies, simplified stock corporations, and limited liability companies, who permitted or actively participated to an anticompetitive behavior, can also be held personally liable towards third parties to repair the victim's harm under certain conditions.
For infringement occurred prior to March 11, 2017, damages claims can be brought based on general tortious liability under the general French civil law principles (art. 1240 et seq. French civil code).
What is required (e.g. in terms of procedural formalities and standard of pleading) in order to commence a competition damages claim?Procedural formalities to initiate a competition damages claim are not different from the usual procedural obligations. The action has to be brought before the competent court (see also under 6) through an ordinary civil proceeding or a collective action according to the applicable procedural rules. The victim or the consumer protection association needs to appoint an attorney admitted to plead before the competent commercial or civil court. The action is initiated by serving, through a bailiff, a writ of summon to the defendant to appear before the court. There is no need to obtain a decision of a competition authority prior to commence a competition damage claim. In addition to the identification of the competent jurisdiction, the name of the plaintiff and of the defendant(s), the writ of summon in an ordinary action needs to set out the claims and the factual and legal reasons thereof. For that purpose, the plaintiff needs to allege an infringement to competition law, the damage suffered, and that such damage is the consequence of the infringement. In a collective action by a consumer association, in addition to these general requirements, the association also needs to expose at least two cases of consumers, which are alleged victims of the anticompetitive conduct of the same undertaking.
What remedies are available to claimants in competition damages claims?The plaintiff in competition damages claim can seek for full compensation of the damage suffered, and injunctive relief, if appropriate. Pursuant to article L420-3 of the French commercial code, the judge may also declare anticompetitive contractual provisions null and void, while still maintaining the agreement if it can be preserved without them. If this is not the case, the agreement as a whole is subject to nullity.
What is the measure of damages? To what extent is joint and several liability recognised in competition damages claims? Are there any exceptions (e.g. for leniency applicants)?For claims relating to infringement occurred before 11 March 2017, according to general principles of civil liability in French law, a victim is entitled to a full compensation of patrimonial and non-patrimonial harms suffered as a consequence of a fault. There are no punitive damages under French law. Also, the plaintiff does not have any obligation to mitigate the damage. For infringements occurred after 11 March 2017, according to article L481-3 of the French commercial code the damage subject to compensation may cover:
- the loss sustained resulting from (a) the extra-cost corresponding to the difference between the price actually paid and the hypothetical price that should have been paid in the absence of the relevant anticompetitive practice, provided that the victim did not pass on all or part of the extra costs on its direct client, or (b) the reduced price resulting for the anticompetitive practice paid by the author of the infringement to its supplier,
- the lost profits,
- the loss of opportunity, and/or
- the moral prejudice.
The judge also takes into account the time elapsed between the occurrence of the harm and its compensation, including the impact of monetary inflation.
With respect to the obligation to compensate the harm, Articles L481-9 et seq. provide that all undertakings that participated to the anticompetitive practice are jointly liable and their contribution is proportionate to the gravity of their respective fault and to their causal role in causing the harm.
Small or medium-sized businesses are not subject to such joint liability, if their market share are below 5% on the relevant market, and if joint liability would irremediably jeopardize their economic viability and would totally devalue their assets, provided however that they have not instigated the anticompetitive practice, have not coerced undertakings to participate in it, or have previously been convicted for anticompetitive practices. SME may still be liable towards their direct contractual partners.
When a defendant applied for leniency and is granted with full immunity by the French Competition Authority or the EU Commission, it is not jointly liable to compensate victims which are not its direct or indirect contractual partners, unless such victims were unable to obtain full compensation from the other participants to the anticompetitive practice, after having unsuccessfully taken action against them (article L481-11 of the French commercial code).
The immunity recipient is in any case liable to indemnify its direct or indirect contractual partners, in proportion to the gravity of its fault and its causal role in causing the damage (article L481-12 of the French commercial code).
With respect to the extent of liability of leniency recipients in the antitrust damages litigation context see answer 16.
What are the relevant limitation periods for competition damages claims? How can they be suspended or interrupted?According to the French civil code, the common limitation period is 5 years starting from the day on which the plaintiff knows, or should have known, the facts allowing him/her to bring a claim. As regards liability claims, French case law rules that the limitation period starts running from the occurrence of damage, or from the day when the plaintiff had knowledge of such damage corresponding to the day when the plaintiff knows to be a victim of an infringement, the duration and the details of the infringement (Paris Court of Appeal,6 March 2019, No 17/21261). In practice, for follow-on competition damage actions, the limitation period starts from the date of the decision of the competition authority (French Supreme Court, 27 January 2021, No 18-16.279). For stand-alone actions, the starting point of the limitation period is assessed considering the specific circumstances of the case. As a general rule, except in certain specific circumstances (including the plaintiffs legal impossibility to act, a mediation or conciliation procedure, or a judicial inquiry), the limitation period may not be suspended. It may only be interrupted by an express acknowledgment of liability, or a judicial action, including for interim relief. Since the transposition into French law of the Damage Directive, the limitation period of competition damage claims is still 5 years, but according to article L482-1 of the French commercial code, it only starts running from the day when the anticompetitive practice ceased. Also, even if the anticompetitive conduct ceased, the limitation period starts only on the day when the plaintiff has knowledge, or should have knowledge of (i) the facts or behavior that qualify as an anticompetitive practice, (ii) the harm suffered as a consequence thereof, and (iii) the identity of one of the parties involved in the practice. According to article L462-7 of the French commercial code, any action taken by the French Competition Authority, a national competition authority of an EU member state, or the EU Commission in order to investigate, establish and sanction an anticompetitive practice, interrupts the period of limitation as long as such decision of the relevant competition authority is no longer subject to any ordinary appeal. As an appeal before the Supreme Court is not an ordinary appeal, the period of limitation starts as of the date of the decision of the Court of appeal of Paris on the first appeal against a decision of the French Competition Authority. For infringements falling under the rules on the statute of limitation applicable until 11 March 2017, the starting point of the period of limitation is the date when the decision of the competition authority becomes final according to the provisions introduced in 2012 (Law No 2012-1270). The same five-year period of limitation is applicable to collective actions of consumer associations under article L623-25 of the French Consumer Code, but the starting point is the date on which the decision of the EU Commission or French Competition Authority establishing the infringement to competition law, becomes final.
Which local courts and/or tribunals deal with competition damages claims?According the French procedural rules, when the plaintiff is qualified as a "merchant" (i.e. a person who makes commercial transactions on a professional basis), only commercial courts (Tribunal de Commerce) have jurisdiction over competition damages claims. When the plaintiff is not a merchant, both commercial and civil courts (Tribunal judiciaire) have jurisdiction. When the plaintiff is a public entity, the case is brought before administrative courts according to general administrative procedural rules. Also, competition damage claims fall under the exclusive jurisdiction of specialized civil and commercial courts of first instance and appeal. According to article L420-7 of the French commercial code, only the specialized courts of first instance (either commercial or civil) of Marseille, Bordeaux, Tourcoing, Fort-de-France, Lyon, Nancy, Paris, and Rennes have jurisdiction in competition law matters. The action can be brought before the specialized court of the place where the defendant is domiciled (for legal entity, the place of its registered office) or those of the place where the harmful event occurred. Appeals against decisions of such courts in competition matters fall under the exclusive jurisdiction of the Paris Court of appeal. For collective actions based on infringements of competition law, only civil courts (Tribunal judiciaire) have jurisdiction according to R623-2 of the French consumer code.
How does the court determine whether it has jurisdiction over a competition damages claim?The Court determines if it has jurisdiction over a claim by applying article 7.1 (2) of the Regulation (EU) No 1215/2012 of 12 December 2012 (Brussels Ibis) which gives jurisdiction to the "the courts for the place where the harmful event occurred or may occur". According to the European Court of Justice (ECJ) case law, the place where the harmful event occurred is intended to cover both the place where the damage occurred, and the place of the event giving rise to it, so that the defendant may be sued, at the option of the plaintiff, in the courts for either of those places. As regards competition damages claim, the ECJ recently ruled that the international jurisdiction is given to any Member State which market was affected by the anticompetitive practice (ECJ, 29 July 2019, Tibor-Trans, C-451/18). With respect to the territorial jurisdiction within such Member State, the ECJ recently ruled in the RH vs. Volvo case (ECJ, 15 July 2021, RH versus Volvo, C-30/20) that the courts having jurisdiction are (i) either those of the place where the alleged victim has bought the goods affected by the anticompetitive agreements, (ii) or, if the alleged victim has purchased the goods in different places, those of the place where the alleged victim has its registered offices. According to this last case law, national courts should be able to determine their territorial jurisdiction in competition damages claims, without referring to national rules on jurisdiction.
How does the court determine what law will apply to the competition damages claim? What is the applicable standard of proof?The law applicable to competition damages claims is determined according to the conflict of law provisions set forth in Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11?July 2007 (Rome II). Pursuant to Article 6.3 (a) of the Rome II Regulation, the law applicable to a non-contractual obligation arising out of a restriction of competition shall be the law of the country where the market is, or is likely to be, affected. If several markets are affected, the plaintiff who sues in the court of the defendant's domicile (lex fori), can decide to choose the law of this court, provided that the market of this Member State is or has been affected directly and substantially by the competition restriction (article 6.1.3. b)). Competition damages claims can either be "follow-on actions" which are brought after a competition authority has found an infringement, or "stand alone actions" which do not follow on from a prior finding of a violation of competition law by a competition authority. In both cases, French law requires the proof of three conditions, being (i) a fault, (ii) the harm suffered, and the (iii) the causal link between the fault and the harm, but the standard of proof is different. The infringement to competition law constitutes a fault giving rise to civil liability. With respect to follow-on actions, Article L481-2 of the French commercial establishes an irrefutable presumption of fault if the infringement is ascertained by a final decision of the French Competition Authority or the Paris Court of appeal, which can no longer be overruled through ordinary appeal procedures for the part relating to the existence and imputation of such anticompetitive practice. For stand-alone actions, the plaintiff has to bring evidence of the infringement. Article L462-3 of the French commercial code, which provides the possibility for the court to seek the opinion of the French Competition Authority may be helpful in this respect (Paris Court of Appeal, 25 November 2015, No 12/02931 – Google c/ Evermaps). In addition, the plaintiff must demonstrate that the harm suffered has directly affected its legal interests and that it is certain, meaning that it is not only hypothetical. Article L481-7 of the French commercial code provides for a rebuttable legal presumption according to which anticompetitive practices are supposed to cause a harm, unless the contrary is proven. For claims relating to infringements occurred prior to March 11, 2017, such presumptions are not applicable. The plaintiff must prove both the fault and the harm suffered. However, the French Supreme Court ruled that an anticompetitive practice necessarily causes a harm (Cour de cassation, Commercial chamber, 28 Sept. 2010, case No 09-69.272 ; Commercial chamber., 11 Jan. 2017, case No 15-18669) and that the plaintiff should bear a lighter burden of proof should the harm be hard to prove (Cour de cassation. Commercial chamber. 12 Feb. 2020, case No 17-31614).
To what extent are local courts bound by the infringement decisions of (domestic or foreign) competition authorities?Pursuant to article L481-2 of the French commercial code, a final decision of the French Competition Authority is binding for French courts, as there is an irrefutable presumption of the existence and imputation of an infringement to competition law rules. A final decision of a competition authority of another EU Member State constitutes evidence of the anticompetitive practice, considered to establish a simple presumption of the existence and imputation thereof. There are no specific rules about the effect of final decisions of competition authorities of non-EU Member States. Final decisions of the EU Commission are binding for French courts according to Art. 16, par. 1 Regulation (CE) No 1/2003. In the context of collective competition damage claims by consumer associations, according to article L623-24 of the French consumer code, an action can only be brought based on a final decision of the French Competition Authority, French courts or the EU Commission, establishing the defendant's liability with respect to the infringement of competition law. As such decision is a mandatory requirement for a collective action, a consumer association cannot bring a stand-alone action in antitrust matters (see also below in answer 11).
To what extent can a private damages action proceed while related public enforcement action is pending? Is there a procedure permitting enforcers to stay a private action while the public enforcement action is pending?There are no limitation to the introduction and proceeding of stand-alone private damages actions under French law. A claimant has the right to introduce, at any time, a stand-alone action before the competent courts. However, if a public enforcement action is pending, the courts can stay the proceedings, at the request of a party or on own motion, and hold until the competition authority's final decision on the anticompetitive practice, according to article 378 of the French procedural code.
What, if any, mechanisms are available to aggregate competition damages claims (e.g. class actions, assignment/claims vehicles, or consolidation)? What, if any, threshold criteria have to be met?French law provides two types of mechanism of aggregation of competition damages claims. First, the collective redress introduced into French law by the Law No 2014-344 of March 17, 2014 (Loi Hamon), in articles L623-1 et seq. of the French consumer code. Only consumer associations that have been certified and recognized as being representative at a national level (15 associations as of September 2021), can introduce such collective action. To introduce a collective action, in addition to the general procedural requirements (see answer 2), the writ of summon must expose the case of at least two consumers, placed in the same or a similar situation, which must have suffered a damage caused by the anticompetitive behavior of the same professional. A collective action goes through three stages:
- First, the consumer association takes action before a court of first instance alleging the defendant's liability based on an infringement of competition law, and will lead to a decision establishing the liability of the defendant, the group of consumers covered by the collective redress, and the amount (or the calculation method) of the compensation to be paid to each consumer, as well as the publicity measures thereof;
- Second, consumers are to be informed, can join the collective redress (opt-in principle), and receive the compensation in accordance to the decision;
- During the final stage, the court rules on disputes arising from the compensation process (i.e. claims rejected by the defendant, or non-fully compensated claims).
The second available aggregation mechanism is the action in joint representation under article L622-1 of the French consumer code. This action can be introduced by a certified consumer association, which is recognized as being representative at a national level, based on the cases of at least two consumers, who suffered a damage caused by the same defendant(s). However, contrary to collective redress, the consumer association must collect the consumers' written mandate prior to introducing an action.
Thresholds on the damages value are not required for both actions.
Are there any defences (e.g. pass on) which are unique to competition damages cases? Which party bears the burden of proof?The defendant can argue that the victim has not suffered any harm because the overcharge was transferred onto a third party ("passing on defence"). For claims relating to infringements occurred prior to March 11, 2017, according to French case law the burden of proof was on the victim (French Supreme Court, 15 June 2010, No 09-15818), meaning that the direct purchaser was presumed to have passed such overcharge on the subsequent purchaser. For claims based on infringements occurred after March 11, 2017, the burden of proof was shifted from the plaintiff to the defendant, establishing several rebuttable presumptions in favor of plaintiffs. Article L481-4 of the French commercial code states that direct or indirect purchasers of the defendant's goods or services are presumed not to have passed on the overcharge due to the violation of competition law. Therefore, the defendant wishing to use the passing on defence bears the burden of proof. According to article L481-5 of the same code, both direct and indirect purchasers who claim to have suffered an overcharge, still has to prove the existence of such overcharge. However, the indirect purchaser is presumed to have suffered from an overcharge when he can prove that (1) the indirect supplier has infringed competition law, (2) resulting in an overcharge borne by direct purchaser, and that (3) it did buy the goods or services concerned by the infringement.
Is expert evidence permitted in competition litigation, and, if so, how is it used? Is the expert appointed by the court or the parties and what duties do they owe?Expert evidence, both provided by the parties or prepared by a judicial expert appointed by the court, is permitted in competition litigation, in particular in assessing damages. The general rules of civil procedure allows the judge to appoint an expert, if expert evidence is necessary in order to rule on case (article 147 French code of civil procedure). The judge defines the scope of the expert mission, and questions to which the expert has to respond. When appointed by the court, the expert can request the parties to provide all documents he/she deems necessary to give the requested opinion. The expert notifies the reports to the judge and to all the parties, according to the adversarial principle of the civil procedure. However, the judge is not bound by the expert's opinion, and can still ground the decision on other evidence, including expert evidence provided by the parties. Judicial experts are subject to their specific deontological rules, and must accomplish their mission with awareness, objectivity, and impartiality (article 237 Code of civil procedure). They also have a confidentiality duty.
Describe the trial process. Who is the decision-maker at trial? How is evidence dealt with? Is it written or oral, and what are the rules on cross-examination?A trial in France generally starts with an instruction phase, but French law ignores discovery or disclosure procedures. Pursuant to article 145 of the Code of civil procedure, a plaintiff can refer to a judge, before any trial, to obtain the documentation necessary to bring the case to court. Once the court is seized, the parties exchange written arguments and documents, which are also communicated to the court. During such phase, the judge will be able to order a party or a third party to produce a specific piece of evidence, if needed, as well as appoint an expert. If the court is a commercial court, all types of evidence are allowed. On the contrary, before civil courts, legal evidence are mainly documents and affidavits. There is usually no witness evidence, and if in very exceptional circumstances a party is allowed to call a witness, there is no cross-examination. Only the judge interviews the witness. The last step of the trial is the hearing before the court in which the case is discussed orally.
How long does it typically take from commencing proceedings to get to trial? Is there an appeal process? How many levels of appeal are possible?There is no typical duration of a trial. It depends on various circumstances such as the complexity of the case, procedural issues raised by the parties, and of the workload of the relevant court. Parties can appeal on the merits the judgement of the civil or commercial court of first instance before the Paris Court of Appeal, which is the only competent court to deal with damages competition claims. Then, the Paris Court of Appeal's decision can be appealed before the French Supreme Court (Cour de cassation). This appeal is not on the merits, but only deals with issues of application of law.
Do leniency recipients receive any benefit in the damages litigation context?When a defendant applied for leniency and is granted with full immunity by the French Competition Authority or the EU Commission, it is not jointly liable to compensate victims which are not its direct or indirect contractual partners, unless such victims were unable to obtain full compensation from the other participants to the anticompetitive practice, after having unsuccessfully taken action against them (article L481-11 of the French commercial code).
How does the court approach the assessment of loss in competition damages cases? Are "umbrella effects" recognised? Is any particular economic methodology favoured by the court? How is interest calculated?The assessment of the loss by the French courts consists of putting back the victim in the situation in which the harmful act did not take place. The method is to compare this counterfactual scenario, e.a the theoretical scenario without anticompetitive practices, with the real situation. The difference between those two will reveal the loss suffered by the plaintiff. Economic methodology is favored by the courts. The Paris Court of Appeal published a set of guidelines in order to help local courts to assess competition damages (https://www.cours-appel.justice.fr/paris/fiches-sur-la-reparation-du-prejudice-economique-2020). Additionally, the judge may allocate (i) late payment interests, and (ii) compensatory interests to repair the monetary depreciation and the loss of opportunity due to the unavailable founds. Compensatory interests start on the day the damage occurred until the day of the judgement. In practical terms and depending on the individual case, the compensatory interests can be set up at the marginal rate at which the plaintiff would have obtain funding, or the predictable profitability of investments that could not have been made because of the lack of funds. The umbrella effect has been recognized by the French case law following the prejudicial ruling of the European Court of justice in the Koné vs. ÖBB Infrastruktur case (ECJ, 5 June 2014, C-557/12) in several judgements (Paris administrative court of appeal, 13 June 2019, n°14PA02419; Conseil d'Etat, 12 October 2020, N° 432981).
Can a defendant seek contribution or indemnity from other defendants? On what basis is liability allocated between defendants?According to the provisions of articles 1313 et seq. of the French civil code, plaintiff may receive full compensation for its entire loss from any of the defendant, without the benefit of discussion or division. However, the defendant who paid compensation can then seek contribution from other defendants, pursuant to article 1317 of the French civil code. The contribution of each defendant is proportionate to the gravity of its respective fault and causal role in sustaining the harm (article L481-9 et seq of the French commercial code). To determine the contribution that a defendant may recover from the other defendants, the judge also takes into account the indemnities already paid by the defendants pursuant to a settlement entered into by them with one of the victims of the anticompetitive practice (L481-13 of the French commercial code).
In what circumstances, if any, can a competition damages claim be disposed of (in whole or in part) without a full trial?A competition damage claim can be disposed of with alternative dispute resolutions such as mediation, settlement, and arbitration.
What, if any, mechanism is available for the collective settlement of competition damages claims? Can such settlements include parties outside of the jurisdiction?As regards collective redress, articles L623-22 and L623-23 of the French consumer code provide that the consumer association can participate to a mediation with the defendant in order to obtain compensation of individual damages of consumers of the relevant group (see also answer 11). When an agreement is reached, in order to become enforceable, it must be approved by the judge who will check if such agreement is appropriate to the consumers' interests. This agreement must also contain publicity measures in order to inform the consumers on the possibility to obtain compensation.
What procedures, if any, are available to protect confidential or proprietary information disclosed during the court process? What are the rules for disclosure of documents (including documents from the competition authority file or from other third parties)? Are there any exceptions (e.g. on grounds of privilege or confidentiality, or in respect of leniency or settlement materials)?Before any dispute, one can ask the judge to rule on instruction measures in futurum (article 145 of the French civil procedure code). The needed documents can be temporarily placed under seal to prevent any violation of business secrecy (article R153-1 French commercial code). If, within a month, the party which asked for protection of business secrecy did not introduce an action to withdraw or modify the court's decision on the measures in futurum, the sealings will be lifted. According to article L153-1 of the French commercial code, during the trial, parties can request protection for certain confidential documents and the judge can order several measures to protect business secrets, such as:
- limiting the access by the parties to non-confidential version of the evidence or on a counsel to counsel basis only,
- discussing the case in a non-public hearing, and
- taking into account the protection of business secrets in the wording of the judgement or issuing a redacted public version thereof.
The party applying for protection of business secrets has to file with the court (i) the confidential documents, (ii) a non-confidential version or a summary of such documents, as well as (iii) a written submission setting out the reason for the request of protection. Stating on such request, the judge can either (i) refuse the disclosure of the document by considering that it is useless to the resolution of the dispute, or (ii) order the disclosure of the document in a non-confidential version or a summary thereof, but the judge may also order the access to the confidential document if necessary for the defense (articles R153-5 to R153-7 French commercial code).
Pursuant to article L483-1 of the French commercial code, disclosure of, or access to, documents are also subject to general civil procedural rules, but the judge must take into account several elements to decide on the disclosure of sensitive documents : the legitimate interest of the parties in trial and of the third-parties holding such documents, the effectiveness of the right to seek compensation, the usefulness of the documents requested for decision-making, the protection of secrecy and the effectiveness of the enforcement of competition law. In practice, the judge must fully justify the decision thereon.
When a category of documents is requested, it shall be identified, as precisely and as closely as possible.
The court cannot compel a competition authority (French Competition Authority, or the European Commission or another Member State's competition authority) to disclose documents that either a party or a third party is reasonably able to provide. Also, pursuant to article L483-5 of the French commercial code, courts can never compel a competition authority to disclose written statements or transcription of oral statements collected as part of a leniency application or a settlement procedure.
Article L483-8 of the same code sets out a list of documents that can be disclosed once proceedings before the competition authority are closed. These documents include the material prepared by the parties or the authority in the course of its proceedings and settlement submissions which have been withdrawn.
Except from this context of disclosure during competition damages claim, the disclosure of documents obtained in connection with the proceeding before the competition authority is strictly prohibited.
Can litigation costs (e.g. legal, expert and court fees) be recovered from the other party? If so, how are costs calculated, and are there any circumstances in which costs recovery can be limited?French civil procedure allows the judge to rule that the procedural fees (such as expert fees) and the so-called other costs that include attorney fees and non-procedural fees will be borne by the party who loses the case. There is no specific calculation method to fix the amount of defense costs. The judge is only bound by the principle of equity and takes into account the economic situation of the condemned party.
Are third parties permitted to fund competition litigation? If so, are there any restrictions on this, and can third party funders be made liable for the other party's costs? Are lawyers permitted to act on a contingency or conditional fee basis?Third-party funding is not prohibited, but not common in France. Currently, there is no specific regulation. However, it tends to develop, especially for arbitration, which is usually more expensive. However, private companies offering to fund and manage all the aspects of a compensation claim are developing. The French bar rules prohibit setting fees solely based on contingency. However, conditional fee basis is allowed when it is complementary to fixed fees.
What, in your opinion, are the main obstacles to litigating competition damages claims?Private competition damages claim are increasing due to more favorable procedural rules and a growing expertise of courts in assessing such complex claims. However, with respect to collective redress, even if this action was introduced in 2014, there are still no collective actions based on antitrust infringements. A certain lack of efficiency of current rules governing collective redress is commonly pointed out. Another obstacle to litigating competition damage claims may also result from a certain lack of elements in the ruling of the French Competition Authority supporting follow-on actions.
What, in your opinion, are likely to be the most significant developments affecting competition litigation in the next five years?As experienced in connection with the trucks cartel, one of the most significant developments in competition litigation will be the increase of damage claims and in particular of the bundling of claims sold by victims to private companies operating this specific business. This trend is the consequence of a greater awareness of stakeholders (including consumers) of the impact of anticompetitive conducts on the market and a more direct access to information, including through social media.
Originally published by Legal 500.
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