Private enforcement: Damage assessment

Law & Economics Workshop organized by Concurrences in partnership with McDermott Will & Emery and Tera Consultants.

Jacques Buhart (McDermott Will & Emery)

The subject is very fashionable, not only because there are already many cases of litigation in France and elsewhere in Europe following ANC’s cartel decisions, but also because we can expect a substantial increase in this type of action before national courts with Directive 2014/104/EU adopted on 23 November 2014.

The approach of the Paris Consular Judge in damages actions

At the Commercial Court of Paris, professionals, lawyers and company lawyers are expected to take a real economic approach.

Nathalie Dostert

My purpose is to make professionals, whether lawyers or corporate lawyers, understand the importance of thinking about their relationship with the judge in a slightly different way. Today, article 1382 of the civil code applies: fault, prejudice, causal link. But all too often, before the Commercial Court of Paris, plaintiffs do not accurately estimate their loss, so that the judge is left with the enormous task of determining the quantum. The practice of assessing damage has nevertheless evolved considerably: professionals are expected to take a true economic approach. It is certainly a matter of law, but above all of economics. The directive changes a great deal. It establishes an irrefutable presumption of fault following a final condemnation by an NCA and allows companies to act (contrary to the Hamon law). Above all, it raises two crucial questions: access to evidence and quantification of harm.

Photos © Léo-Paul Ridet.

Access to this article is restricted to subscribers

Already Subscribed? Sign-in

Access to this article is restricted to subscribers.

Read one article for free

Sign-up to read this article for free and discover our services.



  • Commercial Court of Paris
  • Franklin (Paris)
  • McDermott Will & Emery (Paris)
  • Tera Consultants (Paris)