Private Enforcement #3 Assessment of damages, passing on…

3rd Webinar of the « 5th Private Enforcement Conference » organised by Concurrences, in partnership with Dechert and Deloitte, with Anne-Sophie Choné (Professor, University Paris Nanterre), Dominique Gilles (Counsellor, Paris Court of Appeal), Gildas de Muizon (Partner, Head of the Economic Advisory practice, Deloitte), Nathalie Dostert (Vice President, Paris Commercial Court) and Mélanie Thill-Tayara (Partner, Dechert).

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Anne-Sophie Choné opened the conference with some introductory remarks, recalling the transposition of Directive 2014/104/EU and the application of civil liability rules, provided that special rules do not derogate from them. The definition of reparable damage obeys, in application of ordinary law, two rules: it must be direct and certain. Does the special law contain derogations in this respect? The requirement of the direct nature of the damage refers to the requirement of a causal link. In competition law, in order to respect the principle of effectiveness, a broad assessment is made of the causal link (CJEU, Otis, 2019). Any damage connected with an infringement of Article 101 must be reparable. According to Ms Choné, it is thus appropriate, in French law, to give preference to the theory of equivalence of conditions. Also, with regard to the problem of exemption through the fault of the victim, Ms Choné stated that fault is assessed differently depending on whether it was committed at the same time as or after the occurrence of the damage.

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