Toward a better assessment of « damage to the economy »

The role of the assessment of damage to the economy in the calculation of the penalty

Florence Ninane

The subject is classic but far from exhausted. It is also the subject of several ongoing proceedings before the Paris Court of Appeal. Before starting the debate, it is worth recalling a few fundamental elements. The Commercial Code requires fines to be proportional to the extent of the damage caused by the anti-competitive practice to the economy. This is a French specificity compared to the majority of the other Member States or to the Commission, which calculates the penalty on the basis of the seriousness and duration of the practices in question (although it may take into account the damage to the economy as aggravating or mitigating circumstances). Before the Court of Cassation, the debate has begun as to whether the extent of the damage to the economy should be quantified or whether this concept only requires the Competition Authority to take into account certain qualitative elements.