In its judgment dated November 20, 2013, the Paris Court of appeal (the Court of Appeal) ruled on the communication by the French Competition Authority (the 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.
Ma Liste de Courses (MLDC) had referred to the FCA practices allegedly carried out by two companies in the sector of the processing of discount coupons and e-coupons. At the close of the investigation, the companies formally undertook to amend their behaviour for the future. MDLC then sued them before a civil court for damages caused by such alleged anticompetitive practices.
In the context of a commitment procedure, the FCA does not rule on a finding of infringement. It merely identifies competition concerns likely to constitute anticompetitive practices. Therefore, in a subsequent claim for damages, the civil court must itself determine whether anticompetitive practices actually exist.
In order to enable the Paris commercial court to rule on its claim for damages, MLDC asked the judge to request the FCA to provide the court with pieces of evidence from the FCA’s own file on the matter which had not been furnished by MLDC. In making this request, MLDC was trying to steer a course between, on the one hand, the risk of a €15,000 fine and a one-year imprisonment raised by the prohibition on parties to proceedings before the FCA disclosing information to which they have gained access in the course of such proceedings, and on the other hand, the legal uncertainty resulting from the Semavem precedent according to which such pieces of evidence may be produced before civil courts only if they are necessary for the exercise of the rights of defence. The FCA considered that the professional secrecy binding its agents prevented them from disclosing such documents.
MLDC’s request was initially successful before the Paris commercial court, which followed the reasoning that a claimant can only produce before a court the pieces of evidence that it had itself already produced before the FCA. Consequently, it ruled that the FCA was required to transmit the remaining evidence to the judge. On appeal, the Court of Appeal provided a different interpretation of the Semavem precedent. It held that the prohibition on disclosing portions of the FCA’s file is lifted where such disclosure is necessary for the recognition of the rights of the disclosing party. Under the Court of Appeal’s reasoning, it is irrelevant who initially provided the documents to the FCA; what is relevant is who actually holds the documents and is able to communicate them.
This solution is however, itself not free from ambiguity. The Court of Appeal considers that the FCA and its agents should not bear the risk of a breach of confidentiality in lieu of the party which is able to determine which documents are necessary for the exercise of its rights of defence. The risk is thus borne by the party who must prove that each document in the FCA’s file which it decides to produce is necessary for its claim.
The balance thus reached may be seen as bearing the mark of common sense and weigh in favour of the FCA as it is exempted from playing a role that is not proper for it to play in private enforcement litigation. However, this solution also means that private claimants are forced to bear a risk that could dissuade them from filing claims for damages even though such private enforcement actions are strongly encouraged by the FCA… It also creates a new issue with regard to access to the FCA’s file, in addition to the problem already existing with respect to the possible disclosure of leniency documents in private enforcement litigation, that could also discourage potential leniency applicants from contacting the FCA.