4th Private Enforcement Conference : The current state of private enforcement in the EU and France

Program

Introductory remarks

Chantal Arens (First President, Paris Court of Appeal)

In view of the complexity of competition litigation, it was necessary to group them together in specialised chambers. The Paris Court of Appeal is mainly involved in litigation related to vertical agreements, such as the validity of selective distribution networks and clauses prohibiting sales on marketplaces, particularly with the Coty decision. In addition, it has provided an analysis grid relating to the refusal of approvals by distributors through the Société Concurrence and Palau judgments. It also condemned a vertical agreement on prices in a distribution system in a judgment of 19 December 2018. Finally, it has had to deal with cases of abuse of a dominant position either to exclude it in the Inforad case or to recognise it in the PMU case. The Court also recognised situations of economic dependence in a DCF ruling. With regard to follow-on actions, the damage suffered by an SME prevented from participating in a tender due to a cartel in a judgment of 28 February 2018. This judgment raised the question of the assessment of the damage arising from the loss of chance of losing a contract. The Court also considered that a non-competition clause was anti-competitive in an Ederend judgment. Finally, on 6 February 2019, the Court decided to request a judicial expertise to assess the damage suffered by a phosphate buyer following the Commission’s condemnation of the cartel. Around ten cases following the Authority’s decisions are pending before the Paris Commercial Court. There has been an increase in the number of cases brought before the courts. This is due to the transposition of the Damages Directive and the benevolent application of the principles of this Directive. With regard to international cartels, the judgment of the Court of Justice of 21 August 2015 has given details on the jurisdiction of the courts. Where there is a connection between the claims, they may be judged before a single court in a Member State. Victims may refer to the criteria for special jurisdiction in matters relating to tort, delict and quasi-delict in Article 5 of Regulation 1/2003. The International Chamber of the Paris Court of Appeal has jurisdiction in disputes affecting international trade and, in particular, actions for damages following the conviction of an anti-competitive practice. It was set up by a protocol which, based on the rules of the Code of Civil Procedure, is inspired by common law principles. In addition, pleadings may be held in English.