France: practical insight into private antitrust litigation
This article provides an overview of the principles, rules and procedures applicable to private antitrust litigation in France and provides an update of the recent developments and decisions of note. This article aims to provide readers with a high-level description and practical analysis of the state of private enforcement in France. It also aims to provide an objective yet critical point of view of the latest evolutions and decisions in this growing and increasingly important facet of competition law.
- Recent developments in private antitrust litigation in France
- Overview of the procedure: competent courts, access to evidence and alternative dispute resolution mechanisms
- Conditions of liability: fault, causal link and damage, and liability of parent companies
- Calculation of damages: overcharges and passing-on defence.
Referenced in this article
- Cora, Paris Court of Appeal, Ruling No.
- Sanofi, Paris Court of Appeal, Ruling No.
- Vania, Paris Court of Appeal, Ruling No.
- Daimler, Paris Court of Appeal, Ruling No.
- Doux Aliments, Paris Court of Appeal, Ruling No.
- Digicel, Paris Court of Appeal, Ruling No.
- JJSBF, Paris Court of Appeal, Ruling No.
- Franche Comte signaux, Court of Cassation, Ruling No.
- Doux Aliments, Court of Cassation, Ruling No.
- SNCF Mobilites, State Council, Ruling No.
Private antitrust litigation is a vast area of law that encompasses a wide range of damages claims, including those based on contractual liability (article 1231 et seq of the Civil Code), both follow-on and stand-alone actions based on general tort law provisions (article 1240 et seq of the Civil Code), as well as collective actions, which allow consumers to collectively seek damages from the same professional for the harm suffered as a result of a competition law infringement (article L 623-1 et seq of the Consumer Code). While collective redress mechanisms are rarely used in France, despite the introduction in 2014 of a new regime that aimed at simplifying the conditions for approved consumers' associations to initiate proceedings on behalf of a group of consumers, by contrast follow-on damages claims, based on a finding of infringement by the European Commission (the Commission) or the French Competition Authority (FCA), are rapidly expanding, in particular between companies, with one of them often alleging that it is a direct victim of the anticompetitive practices implemented by the other (eg, between a distributor and its suppliers in cartel cases or between a new entrant and an incumbent operator in abuse-of-dominance cases). This rapid growth of follow-on actions follows the adoption, at the European level, on 26 November 2014, of the Damages Directive and its implementation into French law by the Ordinance of 9 March 2017 (the Ordinance).
The rules applicable to damages claims based on an infringement of competition law are now consolidated in article L 481-1 et seq of the Commercial Code. Although the new rules establish several presumptions that aim to facilitate redress for victims of competition law, in practice these presumptions are not yet applicable, pursuant to the principle of non-retroactivity of laws enshrined in article 2 of the Civil Code and recalled in article 12 of the Ordinance. As most damages claims are currently based on anticompetitive practices that occurred prior to the entry into force of the Ordinance, victims cannot benefit from the above-mentioned presumptions.
Their claims, thus, continue to be dealt with under the old general regime. In several cases, victims of competition law infringements have tried to argue before French courts that, to give full effect to the provisions of the Directive, the old rules should be interpreted in light of the new provisions. While private enforcement law is mostly based on case law, which can evolve, the Paris Court of Appeal has so far been reluctant to make an early application of the presumptions.
In recent case law, the Paris Court of Appeal has consistently recalled that the principle of non-retroactivity of the substantive provisions of the Ordinance prevent it from applying any of them in damages claims based on anticompetitive practices that occurred before March 2017. In addition, the Paris Court of Appeal considers that the current rules are not in breach of the principle of effectiveness of EU law. However, the Court of Cassation has yet to rule on this issue, and it cannot be excluded that, in the near future, a question for a preliminary ruling may be referred to the European Court of Justice (ECJ) concerning the compatibility of the French framework with EU law, as is the case in many other jurisdictions faced with similar challenges.
French courts have jurisdiction over any private antitrust action directed against a defendant whose residence or place of business is in France, or when the anticompetitive practice took place in France or the damage was suffered in France.
The relevant court before which the action should be brought also depends on the parties involved in the dispute (private litigants versus public entities). Regarding matters between private litigants, except when parties to an agreement are bound by a jurisdiction clause, articles R 420-3 and R 420-4 of the Commercial Code designate 16 specialised civil and commercial courts (eight of each) spread across the French territory that have exclusive jurisdiction to deal with private antitrust actions. Civil courts will have jurisdiction in matters involving a consumer, whereas commercial courts will have jurisdiction in matters between commercial parties.
However, in practice, owing to consumers' limited resources, most private antitrust actions are lodged between companies and are, thus, brought before commercial courts. Rulings from the lower courts can only be appealed to the Paris Court of Appeal (articles L 420-7 and R 420-5 of the Commercial Code), and subsequently to the Court of Cassation. The Paris Court of Appeal clarified that the special jurisdiction of those courts extends to summary proceedings aiming, among other things, at gaining access to evidence.
When a public entity or person is either the author or alleged victim of anticompetitive practices, the administrative courts will have jurisdiction, irrespective of the identity of the other party. A practice has already been developed and cultivated before administrative courts, in particular for follow-on damages claims relating to anticompetitive conduct in the context of public tenders.
When bringing a claim, the claimant must show standing by demonstrating that it has a legitimate, direct and personal interest in seeking compensation from the defendant (article 31 of the Code of Civil Procedure). Establishing standing is a precondition for the admissibility of the claim; however, it is not required to establish the plausibility of the defendant's liability.
In practice, anyone who considers itself to have suffered harm as a result of a competition law infringement can have standing, whether it is a direct or indirect victim. By way of illustration, besides the obvious possibility for a direct victim of a cartel or abuse of dominant position as co-contractor of the perpetrator of the practices to bring a claim against the latter, French courts have also recognised standing to a professional union defending the collective interest of its members to claim damages for the personal harm (and not that of its members) suffered as a result of a cartel. This approach is consistent with EU case law, the ECJ having ruled that persons not acting as suppliers or customers on the market affected by a cartel must nonetheless be able to seek compensation for the loss suffered as a result of the cartel; in Otis, the ECJ recognised that a state entity that had granted subsidies for the financing of building projects in Austria had standing to act against the companies that had participated in the elevators cartel since, had this cartel not existed, the amount of the subsidies granted could have been less important.
Under the general regime, pursuant to article 2224 of the Civil Code, private actions, whether based on contractual or tortious liability, are time-barred after five years of the date on which the victim became aware or ought to have become aware of the facts at the origin of its damage.
In respect of cartel cases in particular, it stems from well-established case law that the five-year limitation period only starts to run from the day an infringement decision is issued. Owing to the secret nature of cartels, French courts consider that only an infringement decision can provide potential victims with enough factual elements, such as the identity of the infringers, the nature of the infringement and its duration to initiate a damage claim, irrespective of the fact that the alleged victim may have had suspicions beforehand. This was recently recalled in Vania v Carrefour, where the Paris Court of Appeal rejected the defendant's argument that Carrefour should have known about the existence of the cartel and of the harm it could have suffered as a result before the adoption of the FCA's decision since there was press coverage during the investigation and Carrefour's representatives had been interrogated by the investigation services of the FCA.
In the past, case law has been less consistent in abuse-of-dominance cases. Some decisions already recognised that the limitation period started running from the date of the FCA's decision sanctioning the abuse, but in some cases, a stricter approach had been taken, for example, when the victim of the abuse was a plaintiff before the FCA and already knew at the time of his or her harm. However, recent case law suggests a convergence of approach in abuse-of-dominance cases and cartel cases.
In a judgment of 9 February 2022, the Paris Court of Appeal ruled that, even if the alleged victim had extensively participated in the FCA's investigation, it could not have had any certainty as to the anti-competitive nature of the defendant's conduct and its impact in terms of harm suffered, before the FCA's decision was adopted. This approach is consistent with the new regime. Article L 482-1 of the Commercial Code provides that claims for damages based on that article are time-barred after five years for both stand-alone and follow-on actions.
This limitation period starts to run on the date the victim becomes aware or should have become aware of, cumulatively, the existence of the practices and the fact that they constitute an infringement of competition law; the fact that the infringement caused him or her harm; and the identity of at least one infringing party.
Access to evidence
Pursuant to article 9 of the Code of Civil Procedure, each party must adduce the necessary evidence to the success of its claim, and all parties are required to disclose to the other parties the documents on which their claim is based. In principle, any evidence is admissible to prove a fact unless the law provides otherwise (article 1358 of the Civil Code) and, before commercial courts, the principle of freedom of evidence prevails (article L 110-3 of the Commercial Code). Although no general discovery procedure is available under French law, the parties can have recourse to certain mechanisms to force the production of evidence or to safeguard evidence.
Pursuant to article L 481-3 of the Commercial Code, which applies to all claims lodged after 26 December 2014, victims of competition law infringements can request access to certain categories of evidence held by the defendants. Such categories must be identified as precisely and narrowly as possible, and it is for the party requesting the disclosure to establish the relevance of its request for the exercise of its right to obtain compensation; thus, disclosure can be ordered by the court only after a thorough assessment of the request, in light of the principle of proportionality and having regard to the legitimate interests of each party. The main exceptions to disclosure concern business secrets, privileged documents and certain categories of evidence submitted or held by the FCA (most notably, self-incriminating statements submitted in support of leniency or settlement applications, which, pursuant to article L 483-5 of the Commercial Code, are excluded from disclosure).
Civil fines of up to EUR10,000 may be imposed in case of failure or refusal to comply with a court's order of disclosure, if the evidence is destroyed or if a party fails to comply with the obligations imposed by the court to protect the confidential nature of certain information (article R 483-14 of the Commercial Code). In addition, pursuant to article 145 of the Code of Civil Procedure, any party can request the court to order investigatory measures to obtain access to evidence held by third parties (other than the FCA) that is deemed necessary to resolve the dispute. The court may accept the request, provided, considering all the relevant circumstances of the case, that it is legitimate and proportionate.
On this basis, the Paris Court of Appeal recently refused to order the disclosure of extracts of the confidential version of the Commission's decision in the Truck Cartel case, as first, the claimant failed to convince the court of the necessity to obtain such extracts and, second, the extracts concerned contained references to confidential statements made in the context of a leniency application, which could have undermined the objective of preserving the attractiveness of the leniency programme . Pursuant to article 11 of the Code of Civil Procedure, a party may also ask the court, during the proceedings, to order the other parties or a third party to disclose any document necessary to prove the alleged facts. Finally, pursuant to article 10 of the Code of Civil Procedure, the court may order any measure of inquiry deemed necessary if it considers it lacks sufficient elements to rule on a case (eg, auditions or appointment of an expert).
For instance, in Doux Aliment, the Paris Court of Appeal, after concluding to the existence of a fault and a causal link, decided to appoint an expert to quantify the damage as the evidence provided by the victim was not sufficient. Similarly, in Sanofi, the Paris Court of Appeal decided to appoint an expert to precisely quantify the damage allegedly suffered by the claimant, despite the detailed economic analyses that had been produced by the parties.
Alternative dispute resolution mechanisms
Parties can resort to arbitration or mediation to obtain compensation for the harm suffered as a result of competition law infringements. According to the Damages Directive, alternative dispute resolution mechanisms are complementary to court litigation (recital 5).
The Ordinance of 2017 implementing the Damages Directive also indirectly encourages settlements between the parties. Although not yet applicable in most cases, article L 481-13 of the Commercial Code provides that, in the event that one party settles with the victim, its co-infringers cannot claim contribution from that party, therefore protecting its interests. Moreover, from a strategic perspective, it can be of particular interest for defendants to engage in discrete settlements in the hope to avoid a public judgment and potential claims from other victims.
Establishing civil liability
Fault and wrongdoing
Under the general tort law regime, infringements of competition law constitute a wrongdoing that entitles any victim (direct or indirect) to claim damages for the harm suffered as a result.
In practice, French courts already give a probative value to the decisions of competition authorities and have clearly held, in various cases, that the finding of an infringement by either the Commission or the FCA characterises, in itself, a fault under article 1240 of the Civil Code. Furthermore, according to the Paris Court of Appeal, a commitment decision (ie, which does not contain any finding of infringement but only states competition concerns) constitutes prima facie evidence of an infringement, which can be relied upon by the claimant to establish a fault under article 1240 of the Civil Code. The new regime, although not yet applicable in most cases, is even more favourable to victims.
Pursuant to Article L 481-2 of the Commercial Code, a finding of infringement by a decision of the FCA that can no longer be appealed through ordinary means (hence, excluding appeals before the Court of Cassation) is deemed to be irrefutably established for the purposes of follow-on damages claims. Similarly, article L 481-2 of the Commercial Code provides that national courts cannot make a finding that would be contrary to that made in a Commission's decision, thereby granting an automatic probative value to the Commission's decision in the context of subsequent damages claims. Finally, the new regime provides that, in respect of other types of decisions, including decisions of other EU member states' competition authorities, the finding of an infringement will only constitute prima facie evidence of a wrongdoing.
Civil liability of parent companies
As a general principle under French and EU competition law, a present or former parent company that has not directly participated in the infringement can, nonetheless, be held liable for the infringement and for the payment of the corresponding fine if it is established that the parent company exercises or exercised a decisive influence over its subsidiary.
A 100 per cent shareholding in the subsidiary constitutes a presumption of decisive influence. In such a case, the parent company and subsidiary are considered as forming a single undertaking at the time of the infringement, and it is that undertaking that is held responsible for the infringement. The question now arises before French courts on whether this concept of 'undertaking', which is very specific to competition law, should extend to civil liability matters, where the principle under article 1240 of the Civil Code is normally that of personal liability.
In this respect, article L 481-1 of the Commercial Code implementing article 3 of the Damages Directive expressly refers to the liability of 'the undertaking', thereby possibly opening the door for extensive interpretation of the notion of personal liability in private antitrust cases. The ECJ has already provided guidance on this question in two recent judgments. First, in the Skanska case, although in very specific circumstances where, as a result of a restructuring, the entity that had participated in the infringement had ceased to exist, the ECJ held that, out of principle, the notion of 'undertaking' should not have a different meaning in the context of the imposition of fines by competition authorities and in the context of actions for damages based on an infringement of competition law.
Second, in the Sumal case, the ECJ considered that a victim should be able to seek the civil liability of a subsidiary that has not directly participated in the infringement, provided that two conditions are met:
- it should be established that the subsidiary belongs to the undertaking, within the meaning of competition law, that has been held liable for the infringement of antitrust rules; and
- the economic activity of that subsidiary must relate to the same products that were the subject matter of the infringement for which the parent company was held liable.
However, as for some other provisions of the new regime, article L 481-1 of the Commercial Code currently does not yet apply in most claims for damages. So far, under the traditional approach, French courts have, for example, ruled that a parent company can be held liable for the damage caused to a victim as a result of the anticompetitive behaviour of its subsidiary if it is established that the parent company has interfered with the business of its subsidiary. In the same way, the liability of a subsidiary that has not directly participated in the infringement can be engaged if the latter applied the directives of its parent company.
In addition, it is worth noting that, in line with the ECJ's interpretation, the Paris Court of Appeal considered in a recent judgment that a parent company whose liability was recognised because of the decisive influence it exercised on its subsidiary at the time of the infringement could not subsequently escape civil liability in a follow-on damages claim.
Existence of a damage in relation with the wrongdoing (causal link)
Several presumptions facilitating the victim's burden of proof have been introduced by the Damages Directive. In particular, under article L 481-7 of the Commercial Code, cartels are presumed to cause harm; however, owing to French rules governing the applicability of law over time, this provision currently does not apply in most damages claims. A recent opinion issued by Advocate General Rantos in the context of a question referred to the ECJ for a preliminary ruling confirms that this presumption is of a substantial nature rather than merely having a probative value insofar as it is directly linked to the attribution of civil liability to the author of the infringement and, consequently, directly affects his or her legal situation.
Under the old regime, it is therefore for the victim to prove both the causal link between the anticompetitive practices that form the basis of its claim and the harm it considers having suffered as a result. In practice, the causal link can be established based on elements contained in the decision of the FCA or the Commission or based on economic analysis. First, the elements contained in the decision of the FCA or the Commission often constitute a useful resource: for example, the fact that the victim is named in the decision as being the addressee of targeted price increases decided between cartelists can be deemed sufficient to establish the causal link.
More recently, the Paris Court of Appeal confirmed that the causal link between the cartel and the damage allegedly suffered by the victim could be established on the basis of the FCA's findings in its decision, where the latter held, in relation to a cartel between suppliers of personal and homecare products, that the purpose of the cartel was to decrease the uncertainty on the market and to improve the suppliers' position in their negotiations with their distributors, in order to obtain better commercial conditions. Second, economic analyses can help to materialise the impact of the anticompetitive behaviour and its causal link with the alleged damage: for example, visual charts can be used to reflect the impact of a cartel. Economists also tend to consider that, when the conditions to use it are met, the difference-in-differences method is particularly effective insofar as it allows for isolation of exogenous factors to the cartel that can influence prices and, thus, the empirical demonstration of the causal link between the practice and the alleged damage.
In Cora, the Paris Court of Appeal extensively relied on the analysis provided by the claimants' economists to assess both the causal link and the existence of the alleged damage. Finally, regarding the damage itself, the question arose as to whether a distinction should be made between its existence and its quantification. In practice, once the victim has established that it has suffered damage as a result of the anticompetitive conduct, the courts must proceed with its quantification.
However, in certain cases, this reasoning was not strictly followed. While administrative courts have already recognised this distinction, it is only recently that the Paris Court of Appeal really upheld this distinction, with the court now analysing first whether a harm directly linked to the infringement has been suffered and, if so, subsequently proceeding with its quantification.
Quantification of harm
Quantifying the harm suffered as a result of a competition law infringement is a rather complex task that generally requires the use of a counterfactual (ie, a hypothetical situation that would have happened absent the infringement) as part of the demonstration. The role of economic experts in private antitrust litigation is, therefore, extremely and increasingly important.
In practice, several methodologies can be used by economists to demonstrate the existence of a damage (eg, a price increase) in relation with the infringement, and then to precisely quantify the damage suffered as a result. However, French courts are faced with two main challenges. First, although as robust as possible, the analyses presented by victims of competition law infringements are often not exact science; yet, the judge has to award damages that reflect, in light of the principle of full compensation, the loss actually suffered by the victim.
Second, interpretation of the results of an economic analysis is not an easy task for judges, as illustrated by certain judgments. However, French courts are making notable efforts to understand and take into account the economic analysis submitted by the parties, and an improvement in assessing the damages suffered by the victims can be noticed in recent judgments. In Cora, the Paris Court of Appeal, overturning a judgment of the Paris Commercial Court, granted the company compensation, relying on a detailed economic analysis produced by the victim that established that it had paid an overcharge as a result of the conduct of the cartelists sanctioned by the FCA, which had not been entirely passed on to consumers.
In practice, the harm suffered by a victim generally entails an overcharge that directly results from the anticompetitive behaviour, from which, to avoid overcompensation, the passing-on of such overcharge must subsequently be deduced.
Over the past years, French courts have accepted different methodologies in order to assess the overcharge resulting from a competition law infringement. One of the most common methodologies is the comparison of prices over time on the market affected by the practices. Yet, other methodologies have been considered admissible such as, for example, a method based on a linear margin regression or the difference in differences method, which compares the evolution of prices over time on two distinct, yet similar markets.
Under the current rules, one of the biggest challenges faced by direct victims of competition law infringements is to demonstrate the absence of passing-on to their own customers of the overcharge that has been imposed to them on the upstream market.
According to established case law of the Court of Cassation, it is for the plaintiff to establish its damage: therefore, when the defendant raises the passing-on defence, the plaintiff must demonstrate that it has not and could not pass-on the overcharge to its own customers. Failure to do so generally results in compensation being denied to the victim. On the contrary, the new regime resulting from the implementation of the Damages Directive provides for two presumptions that shift the burden of proof from the victim to the defendant, both for direct and indirect purchasers (article L 481-4 of the Commercial Code): in the case of direct purchasers, the defendant will have to demonstrate the passing-on of the overcharge, whereas in the case of indirect purchasers, it must demonstrate the absence of passing-on by the direct purchaser to escape liability.
In practice, recent case law shows that French civil courts are reluctant to make an early application of those presumptions. Except in limited cases, they tend to adopt a very strict approach to passing-on, referring to the above-mentioned case law of the Court of Cassation, which in the past has often resulted in compensation being denied to direct purchasers in cartel cases. However, the Paris Court of Appeal has now recognised that the passing-on of the overcharge can be limited and, as exemplified by the Cora case, if the evidence adduced by the victim is sufficient and the economic analysis robust enough, compensation can be obtained.
According to the Paris Court of Appeal, although there is an incompatibility between the principles that derive from previous case law that places the burden of proof on the plaintiff and the presumptions established by the new regime, in the absence of a special provision, it considers itself not to have the power to derogate from the current rules. The Court of Appeal also confirmed that these presumptions are of a substantial nature as they directly affect the legal situation of the defendant and, thus, cannot be applied retroactively. By contrast, administrative courts have already reversed the burden of proof, considering that requesting the victim to prove the absence of passing-on amounts to a negative proof that is practically impossible to establish.
Finally, passing-on often entails as a consequence a 'volume effect' (ie, a decrease in the volume of sales as a result of the increase in price that has been imposed to customers). In principle, this specific component of the damage must also be compensated; however, French courts have so far been reluctant to award damages on this basis.
Principle of full compensation
Pursuant to articles 1240 and 1241 of the Civil Code, plaintiffs are entitled to seek full compensation for the damage suffered; hence, any victim that has suffered harm as a result of a competition law infringement is entitled to claim compensation for both its actual loss and loss of profit, plus interest. No punitive nor exemplary damages are available under French law.
Under the new regime, article L 481-3 of the Commercial Code provides that compensation notably includes:
- the loss resulting from the overcharge (unless it was passed on to customers) or from a lower price paid by the infringer;
- the loss resulting, notably, from the decrease in sales volume linked to a partial or total passing-on of the overcharge;
- the loss of opportunity; and
- non-pecuniary harm.
The payment of interest is an essential component of compensation. Interest is due to the victim as compensation for monetary erosion during the time it suffered a financial loss. The victim must prove that, had it not suffered this loss, the funds could have been used for another purpose.
Under French law, interest accrues from the moment the damage arose until the judgment is adopted; however, French courts have already ruled that interest should be due until full payment of the damages. In practice, the interest rate retained by the courts depends on the circumstances of each case. While the legal interest rate is the default applicable rate, some victims of competition law infringements have obtained that a rate based on their weight average cost of capital (WACC) be taken into account for the calculation of interest; however, recent case law suggests that interest awards based on the WACC are subject to the fulfilment of strict criteria that, in practice, may be difficult to satisfy.
In particular, in the Orange Caraibe case, the Paris Court of Appeal held that the victim must establish a specific harm by demonstrating either: a reduction in its activity without being able to find alternative financing through loans or equity capital; or the abandonment of specific investments on which the return to be expected would be equal to the WACC. However, other alternatives to the legal interest rate (which is often considered as not reflecting the economic reality for a company) or the WACC (which is hardly obtainable) could be considered. In particular, the Court of Appeal considers, in its explanatory notice on the quantification of the damage, that the sums lost by the victim as a result of an infringement of competition law may have increased its financing needs.
In those cases, the Court of Appeal considers that the marginal financing rate could be used to calculate compensatory interest. The Paris Court of Appeal has recently done so in Cora, using the marginal financing rate of the claimants as the interest rate. In another case, the Court of Appeal had previously applied a sui generis interest rate of 5.3 per cent for part of the damage, on account of the fact that Digicel proved that it could have used the funds lost as a result of Orange's anticompetitive behaviour for other purposes, such as, in this case, its deleveraging.
These recent decisions show that the Paris Court of Appeal is not reluctant to depart from the traditional approach and send a positive signal to victims regarding calculation of interest in damages claims. In addition to compensatory interest, specific interest is due to compensate the delay of any payment due. The interest is automatically granted when damages are awarded in a judgment and are due from that day.
Unless otherwise provided, the interest is due until the other party pays the ordered amount (articles 1231-6 and 1231-7 of the Civil Code). The interest is calculated according to a legal rate set by a decree each semester.
Conclusion and trends
Although France has traditionally not been considered as an attractive forum for private antitrust litigation (compared to other member states in the EU such as, for example, Germany or the Netherlands), recent developments show the willingness of French courts to attract more cases and there seems to be an evolution in favour of victims of anticompetitive damages. The pedagogical approach adopted by the Paris Court of Appeal in its recent judgments is also noteworthy and provides useful guidance to claimants and defendants on the interpretation of the various concepts that French courts are faced with in damages claims based on an infringement of competition law, but also on the pitfalls to avoid when bringing a claim and the areas where further education of the courts might still be needed.
In practice, however, enforcement still lacks consistency, especially between the judiciary and the administrative order, which seem to have different approaches to damages claims; while administrative courts tend to adopt decisions that are rather favourable to the victims, civil and commercial courts have taken a stricter stance and their judgments are more nuanced. It thus remains to be seen how the Court of Cassation will, pending the application of the new regime, interpret the current rules. More particularly, the Court of Cassation may, in the near future, have to decide whether the presumptions provided for in Ordinance Law No.
2017-303 of 9 March 2017 should already receive an early application in light of the principle of effectiveness of EU law or whether the current regime should continue to apply to all damages claims based on practices implemented before the adoption of the 2017 Ordinance. Another key challenge for the courts is the calculation of damages, which generally involves complex and sophisticated economic analyses with which judges are often not familiar. In practice, their task is made all the more difficult because they are generally confronted with contradictory analyses and results presented by the parties, despite being based on the same set of data, which can call into question the existence of the damage itself and the award of compensation in a given case.
Those difficulties have sometimes led the judges to appoint independent experts, which raises the issue of timing and cost.
The volume effect, which corresponds to the sales lost on the downstream market as a result of the passing-on of the overcharge incurred by the victim, is also an area where further developments are expected in the future: in practice, quantifying the volume effect requires complex economic analysis based on an assessment of price elasticity, which victims have so far been reluctant to conduct given the significant additional costs involved, whereas the volume effect may only represent a limited portion of the overall damage suffered.
Hence, to date, French courts have not awarded damages based on the volume effect, considering that the alleged damage was not certain whereas the volume effect is a corollary of the passing-on and, as such, an additional and integral part of the damage suffered that ought to be better considered to ensure full compensation of the victim.