Follow‑on private enforcement actions (by which victims seek compensation for damages incurred as a result of anti‑competitive practices, as determined by a prior decision) are on the rise in France. However, a 20 December 2017 decision of the Paris Court of Appeal* shows that it is not easy to prevail in such follow‑on suits when the French Competition Authority (“FCA”) had merely rendered a decision compelling the defendants to comply with their proposed commitments.
The facts of the case under consideration date back to 2006 when DKT International (“DKT”), a company working in the waste collection and recycling sector, requested the FCA to investigate alleged anti‑competitive practices carried out by two other companies in the same sector, namely Eco Emballages and Valorplast. In a decision dated 27 September 2010, the FCA accepted the commitments proposed by Eco Emballages and Valorplast to alleviate compensation concerns, made those commitments compulsory and closed the matter.
Thereafter, in 2011, DKT sued Eco Emballages and Valorplast for the damages it incurred as a result of the anti‑competitive practices which had given rise to the above commitments. In a decision dated 30 March 2015, the Paris Court of First Instance, having had access to documents derived from the FCA investigation file, held Eco Emballages and Valorplast liable for anti‑competitive practices and granted damages to DKT.
However, in the recent decision under consideration, the Paris Court of Appeal overturned the decision of the Paris Court of First Instance. It held, in short, that the alleged anti‑competitive practices were not established. In other words, even though the FCA decided to render the commitments undertaken by Eco Emballages and Valorplast compulsory on the grounds that they were raising competition concerns, this alone was not sufficient to establish the alleged anti‑competitive practices of these two companies since the FCA did not carry out a complete assessment of the alleged practices.
That being said, such a situation could not occur in the case of a final and binding decision of the FCA holding a company liable for anti‑competitive practices, as opposed to a decision acknowledging the company’s commitments. In such case, article L. 481‑2 of the Code de commerce (the French Commercial Code), in effect since 2017, provides that the anti‑ competitive practice is deemed indisputable.
* Paris Court of Appeal, 20 Dec. 2017, No. 15/07266