In a decision dated September 24, 2014, the Paris Court of Appeal (Court of Appeal) issuing a ruling on the communication by the French Competition Authority (FCA) of documents held in its own file to a civil court before which a victim of alleged anticompetitive practices had brought a private enforcement claim.
Following a judgment of the Paris Commercial Court (Court) issued in an action brought by the company DKT International (DKT) against two other companies, the case was brought before the Court of Appeal to decide on the question of access to evidence held by the FCA for the purpose of a private claim for compensation for competitive damages.
The judgment of the lower Court followed a decision in which the FCA, on application by DKT, accepted the commitments offered by the two companies, which were suspected of having implemented exclusionary practices in the area of packaging waste management. Following the termination of such proceedings by the FCA, DKT commenced an action for damages against such companies and for the purposes of such action requested that the FCA provides the Court with communication of certain components of the FCA’s own file.
Although the Court ordered the FCA to communicate the evidence requested pursuant to Article 138 of the CPC, the Court of Appeal held that it is up to the party who has elements of the file of the FCA at its disposal and who intends to rely on them to produce such evidence before the civil court, regardless of who provided such documents in the first place. Therefore, it was up to DKT to show, in accordance with the precedent laid down in the Semavem case, that disclosure of each item of evidence was necessary in order to ensure the respect of its rights. The Court of Appeal thereby confirmed the position adopted in its judgment of November 20, 2013 regarding a similar request made by the company “Ma Liste de Courses” (see our Competition Newsletter n°40).
Although this solution is in line with the basic principle underlying the requirements of protection of secrecy of investigations in France, it is nevertheless likely to prevent companies from bringing civil actions for damages due to the risk they face in the event the communication of items of evidence is misused. Indeed, outside of the Semavem exemption, the disclosure by the parties of information of which they have become aware during a procedure before the FCA can result in the imposition of fines of up to 15,000 euros and one year’s imprisonment. The consistency of such approach with the policy which encourages the bringing of private actions by a company which considers itself victim of anti-competitive practices can also be questioned.
The entry into force of the Directive on private actions and its transposition into French law might change the situation. The Directive enshrines a general principle of access to the file with certain absolute exceptions (evidence which cannot be communicated under any circumstances) and other temporary exceptions (evidence which can only be communicated after the termination of the case by the FCA). As such exceptions are listed on an exhaustive basis, the parties in the action before the FCA who wish to produce evidence in the context of private actions will benefit from a clearer analysis grid, which should have the effect of mitigating the risk which they currently face. This solution should therefore be more in line with the desire constantly reiterated by the competition authorities of increased use of private actions related to competition matters.