In 2010, believing that it was the victim of exclusionary practices committed by Eco-Emballages and Valorplast, DKT complained to the French Competition Authority.
In a decision handed down on September 27 2010, the Competition Authority closed the proceedings brought against these two companies, subject to them respecting a number of commitments.
In order to obtain damages for the harm suffered from the exclusionary practices, DKT brought the case before the Paris Commercial Court. To demonstrate the existence of anti-competitive practices by Eco-Emballages and Valorplast, DKT asked the court to order the Competition Authority to disclose details from the case files to which it had access, namely the hearing minutes, including those of Eco-Emballages and the latter's submissions. A company is authorised to disclose such elements, which are generally protected by privilege, only if they are necessary for it to exercise its rights. Not wanting to risk incurring criminal sanctions for breach of privilege, DKT asked the court to request that the Competition Authority disclose this information.
The court therefore ordered the Competition Authority to produce certain documents, but the Paris Court of Appeal overturned this decision, pointing out that it was up to DKT to submit as evidence the documents that it possessed and which it considered necessary to exercise its rights. The court recalled that DKT could risk incurring criminal sanctions if it turned out that the documents in question were not useful as evidence of the allegations made.
This decision appears to be consistent with the European directive on actions for damages in the case of infringement of competition law. According to this directive, member states must ensure that national courts can order the national competition authority to produce evidence contained in its files only when neither of the parties, nor any third party can reasonably provide that evidence.
As regards DKT bringing proceedings, the court of appeal noted that the commitments procedure before the authority does not prevent the victim of an anti-competitive practice from bringing proceedings before the courts, even if the case is closed by the Competition Authority before any definitive assessment of the practices. However, it is up to the claimant to prove the anti-competitive nature of the practices, which will not be presumed.
Emmanuelle van den Broucke
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