In a case regarding practices in the discount coupons sector, the Competition Authority accepted the commitments offered by the defendant undertakings and concluded the proceedings.(1) The same solution was adopted in a case concerning the take-back and recycling of plastic household packaging waste.(2) In both cases the complainants subsequently filed damages claims with the Commercial Court. Even though they had the necessary evidence to show injury, which had been obtained in the course of the competition proceedings, they could not disclose it themselves for fear of violating Article L463-6 of the Commercial Code, which makes the following a criminal penalty:
"the disclosure by one of the parties of information regarding another party or a third party and which [they] could only have known as a result of communications or consultations which have been carried out."
To get round this, the complainants asked the court to order the Competition Authority to disclose a non-confidential version of the documents in the file pursuant to Article 138 of the Code of Civil Procedure, which provides that "if, in the course of proceedings, a party intends to cite… a document held by a third party, it can apply to the judge in the case for an order… of disclosure… of the document".
In the first case the court granted the request(3) on the basis of the Semavem ruling of the Court of Cassation,(4) which laid down the principle that disclosure is justified when it is necessary for the exercise of defence rights. However, the Competition Authority, supported by the defendants, claimed a lawful impediment to disclosure and requested the withdrawal of the injunction. As the complainant was in possession of the requested documents and as the Semavem ruling applies to both applicants and defendants, it could disclose the documents itself if it could show that the documents were necessary for the defence of its rights.
In the second case(5) the Competition Authority argued on the same basis.
In the two rulings handed down on March 16 2012, the Commercial Court confirmed that the principles stemming from EU case law and from the Semaven judgment allow applicants to disclose evidence obtained in the course of the competition procedure if such disclosure is necessary for the exercise of their rights. This clarification is welcome because the reasoning of the August 2011 judgment did not make clear whether the court considered the Semavem ruling also to be beneficial to the applicant.
Nevertheless, the court drew no conclusions from it. While that principle should have prevented the Competition Authority from being compelled to disclose the required documents, in the first case the judge refused to withdraw the order, and in the second case the court issued an injunction. Furthermore, although use of the documents should have first been subject to the requirement that the applicants show how they were necessary in respect of their defence rights, the court ordered their disclosure in order to make such assessment itself.
Although, from a procedural point of view, the court's reasoning can give rise to some criticism, the principle of a liberal approach to the use of evidence from competition proceedings in subsequent damages claims should be considered in a positive light and the victims of anti-competitive practices will welcome this new development.
For further information on this topic please contact Joseph Vogel at Vogel & Vogel by telephone (+33 1 53 67 76 20), fax (+33 1 53 67 76 25) or email ([email protected]).
(1) Competition Authority, June 25 2010, LawLex20100000774JBJ.
(2) Competition Authority, September 27 2010, LawLex201000001044JBJ.
(4) Court of Cassation, January 19 2010, LawLex20100000136JBJ. See also Paris Commercial Court, August 24 2011, LawLex201100001427JBJ, CDC 08/2011.