The June 26, 2013 judgment of the Paris Court of Appeal (delivered after the case has been referred back by the French supreme court) defined new limits in the matter of compensation for harm suffered as a result of an anti-competitive practice.
Initially, the European Commission sanctioned the British company JCB Service in 2000 for concluding agreements and engaging in concerted practices with its official distributors to partition the markets at national level and preserve their territorial exclusivity. This sanction was the result of the complaint filed in 1996 by Central Parts, which claimed that it had been prevented from procuring JCB equipment in the UK, where the prices were substantially lower than in France. A few years later, after the dismissal of JCB’s appeal by the General Court of the European Union but before the final confirmation of the decision by the European Court of Justice, Central Parts brought a liability action before the French courts to obtain compensation for the damage suffered as a result of the anti-competitive practices. As is the case in any tort liability action, Central Parts had to establish that JCB had committed a wrongful act, that it had suffered harm and that there was a direct link between the wrongful act and the harm.
The Paris Court of Appeal held that infringements of EU legislation, recognized by the European bodies, constituted tort according to French domestic law and the resulting harm should be compensated.
When it came to determining the harm suffered, however, things got tougher for Central Parts: first the objection of the ten-year (now five-year) statute of limitations of tort liability actions was raised. Central Parts, which had brought its action by writs of March 4, 2004 and April 12, 2005, namely almost nine years after its complaint to the Commission, argued that the limitations period had been suspended by the proceedings before the EU courts up until their final confirmation of the infringements on which its action for damages was based. The Court of Appeal dismissed the argument, finding that the purpose of the proceedings before the EU courts was to determine and sanction the anti-competitive practices, and not to compensate the resulting harm. According to the Court, Central Parts should have applied to the domestic courts as soon as the harm became apparent and they would then have deferred their judgment until the end of the proceedings before the EU courts. It therefore considered that the limitations period had not been suspended and that just the harm suffered since April 1995 should be taken into account.
Finally, to estimate the amount of the damage, the Court of Appeal considered that the evidence produced by Central Parts to prove the damage suffered (evaluated at EUR 600,000 at first instance) was not sufficiently substantiated and therefore ordered an appraisal. 17 years after its initial complaint, Central Parts has still not been compensated for the reported anti-competitive practices.
While waiting for a European Directive (currently under discussion) to harmonize and clarify these rules, victims of anti-competitive practices will have learned their lesson from this case, that they should not wait for the decision acknowledging the infringement to become final before bringing an action for damages.