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ICC COMPENDIUM OF
ANTITRUST DAMAGES ACTIONS
FRANCE
Court decisions
in key jurisdictionsICC COMPENDIUM OF ANTITRUST DAMAGES ACTIONS
©2021, International Chamber of Commerce (ICC)
This chapter is part of the ICC Compendium of Antitrust Damages Actions (2021) published
by ICC.
ICC holds all copyright and other intellectual property rights in this collective work, and
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Permission can be requested from ICC through ipmanagement@iccwbo.org.
International Chamber of Commerce
33-43 avenue du Président Wilson
75116 Paris
France
ICC Publication No. KS101E
2FRANCE
Introduction
This chapter is part of the ICC Compendium of Antitrust Damages Actions (the
“Compendium”) which can be read in full on the ICC website at www.iccwbo.org.
Designed to provide decision-makers with a comparative overview of the issues most
frequently arising in private antitrust litigation in key jurisdictions, the Compendium
includes an unprecedented collection of decisions issued in the same jurisdictions. This
database is the essential complement to the overviews for a comparative approach and
will allow a better understanding of the rules presented in the compendium. Each case
summary will provide users with a brief description of the facts of the case and outline
the solutions brought by the courts to the issues raised by the case with regard to the
topics addressed in the overviews. Rather than performing keyword searches through the
common online databases in each jurisdiction, antitrust practitioners and enforcers will have
all key decisions at hand. Courts will be able to see what other courts in other jurisdictions
have decided on a given issue, which may contribute to a greater consistency and, within
the European Union, to enhance integration. This compendium also intends to provide
competition authorities with a general view on the consequences of their decisions.
Methodology for the selection of cases
The following cases are the most relevant ones in the French case-law for both follow-on
and stand-alone proceedings. This selection does not attempt to be exhaustive.
First instance judgments are included only to the extent that they are of particular
relevance. In cases where the initial judgment has been appealed, only the last decision is
being referred to. However, references to previous judgments are listed in the table.
INTERNATIONAL CHAMBER OF COMMERCE (ICC) 3ICC COMPENDIUM OF ANTITRUST DAMAGES ACTIONS
Country: France
Case Name and Number: Cour d’Appel, Paris, 17 juin 2020 RG n°17/23041
Date of judgment: 17 June 2020
Economic activity (NACE Code): J.61 — Telecommunications
Court: Court of Appeal Was pass on raised (yes/no)? No
Claimants: SA Digicel Antilles Françaises (If in EU) Was the EU Damages Directive
Guyane referred to/relied upon (and if so, for
procedural or substantive provisions)?
Directive 2014/104 not applicable in this
case (facts pre-dating entry into force of
Decree and Ordinance).
Defendants: SA Orange and SA Orange Were damages awarded (if so, how much
Caraïbe (Appellant) and to whom)? If not, why not (e.g. lack
of standing, causal link)? Was there
another outcome or remedy? EUR 181.5
million
Is/was the case subject to appeal (yes/ Amount of damages initially requested:
pending/no)? If yes, briefly describe EUR 578 million
current status/outcome: Unknown
Key Legal issues: Is the dispute likely to be settled
privately? N/A
• Abuse of dominant position
• Exclusivity clauses
• Distribution agreement
• Resale price maintenance
Direct or indirect claims? Direct Method of calculation of damages: N/A
Individual or collective claims? Individual Name and contact details of lawyer who
has drafted summary: Marie Louvet, Of
Counsel, Herbert Smith Freehills Paris LLP,
marie.louvet@hsf.com
4 INTERNATIONAL CHAMBER OF COMMERCE (ICC)FRANCE
Follow-on (EC or NCA?) or stand-alone?
Follow-on (FCA decision No. 09-D-36,
upheld by the Paris Court of Appeal
(23 September 2010, 2010/00163), then
annulled by French Supreme Court (31
January 2012, 10-25.772), upheld again by
the Paris Court of Appeal (4 July 2013)
and the French Supreme Court (6 January
2015, 13-21.305))
Brief summary of facts
Orange Caraïbe was fined by the FCA for: (i) imposing exclusivity clauses in distribution
agreements with its independent distributors, (ii) having an exclusivity agreement with
Cetelec, the only authorised repairer of terminals in the Caribbeans; (iii) setting up a
customer loyalty programme; (iv) practising abusive differential pricing between “on net”
and “off net” calls; and (v) resale price maintenance.
The Commercial Court awarded EUR 346 million to Digicel. The Commercial Court seemed
to apply a presumption of causality. It noted that Orange did not prove that Digicel’s
prejudice could result from an erroneous commercial strategy or a lack of investment of
Digicel. The Court considered that the interest rate applicable in the present case was the
ARCEP rate (10.4%) unlike in the similar case Outremer Telecom where it applied the legal
interest rate.
Brief summary of judgment
The Court of Appeal partially overturned the judgment rendered by the Commercial Court
which considered that only certain practices amounted to a fault generating prejudice
against Digicel. Besides damages for the customer loyalty programme and the price
discriminatory practices, the Court of Appeal also awarded damages for the exclusivity
agreement and the exclusivity clauses. The Court also confirmed the relevance of the two
complementary methods used by the claimant for quantifying its prejudice and the use of
the margin on variable costs but unlike the Commercial Court opted for the lower quantum
instead of the higher one). The Court however quashed the judgment on the use of the
ARCEP interest rate, putting more in line the Outremer and Digicel cases.
INTERNATIONAL CHAMBER OF COMMERCE (ICC) 5ICC COMPENDIUM OF ANTITRUST DAMAGES ACTIONS
Country: France
Case Name and Number: Conseil d’Etat, 7e et 2e ch., 27 March 2020, n°420491
Date of judgment: 27 March 2020
Economic activity (NACE Code): C32 Other Manufacturing / C 28 Manufacture of machinery and
equipment
Court: Conseil d’Etat (Supreme Was pass on raised (yes/no)? Yes
administrative court)
Claimants: Département de la Manche (If in EU) Was the EU Damages Directive
referred to/relied upon (and if so, for
procedural or substantive provisions)?
Directive 2014/104 not applicable in this
case (facts pre-dating entry into force of
Decree and Ordinance).
Defendants: Signalisation France Were damages awarded (if so, how much
and to whom)? If not, why not (e.g. lack
of standing, causal link)? Was there
another outcome or remedy? EUR 2.2
million
Is/was the case subject to appeal (yes/ Amount of damages initially requested:
pending/no)? If yes, briefly describe Unknown
current status/outcome: No
Key Legal issues: Is the dispute likely to be settled
privately? N/A
• Limitation period (starting point)
Direct or indirect claims? Direct Method of calculation of damages: N/A
Individual or collective claims? Individual Name and contact details of lawyer who
has drafted summary: Marie Louvet, Of
Counsel, Herbert Smith Freehills Paris LLP,
marie.louvet@hsf.com
Follow-on (EC or NCA?) or stand-alone?
Follow-on (FCA, Decision 10-D-39)
6 INTERNATIONAL CHAMBER OF COMMERCE (ICC)FRANCE
Brief summary of facts
In 2010, the FCA fined eight companies active in the road signalling sector for bid rigging
and market sharing. Several local communities sought compensation for the overcharge
paid as a result of the practices before administrative courts.
Brief summary of judgment
The Conseil d’Etat (French administrative supreme court) confirmed the judgments of the
first instance and appeal courts ordering one of the cartel members, Signalisation France, to
pay a local community (Manche department) EUR 2.2 million damages.
Before Law n° 2008-561 of 17 June 2008, limitation period for quasi-tort liability was ten
years from the date when damage occurred. The above-mentioned law has reduced it to
five years from the date the victim becomes or should have become aware of facts allowing
it to seek compensation. The Manche department brought its claim on 16 February 2015.
Signalisation France claimed that the claim was time-barred since the Manche department’s
became aware of the practices as early as 2006 (several press articles having been
published at that time), or 2009 when prices decreased as a result of the end of the cartel,
or in any event before the FCA 2010 decision as it was interviewed by the FCA during the
investigation. Signalisation considered the limitation period started at the date of entry into
force of the 17 June 2008 Law and ended five years later, on 20 June 2013.
The Conseil d’Etat considered that the Manche department did not have “sufficiently
certain” knowledge of the scope of the practices before the FCA decision dating 22
December 2010, and confirmed the claim was not time-barred when introduced in February
2015.
INTERNATIONAL CHAMBER OF COMMERCE (ICC) 7ICC COMPENDIUM OF ANTITRUST DAMAGES ACTIONS
Country: France
Case Name and Number: Tribunal de commerce Paris, 3e ch., 20 February 2020, n°2017021571
Date of judgment: 20 February 2020
Economic activity (NACE Code): C.10.5 — Manufacture of dairy products
Court: Commercial Court (Paris) Was pass on raised (yes/no)? Yes
Claimants: SAS Provera France, SAS Cora (If in EU) Was the EU Damages Directive
et SAS X Z referred to/relied upon (and if so, for
procedural or substantive provisions)?
Directive 2014/104 not applicable in this
case (facts pre-dating entry into force of
Decree and Ordinance).
Defendants: SA Groupe Lactalis, SNC Were damages awarded (if so, how much
Lactalis Nestlé, SNC Novandie, SNC and to whom)? If not, why not (e.g. lack
Andros, SAS X O P, SAS Senagral Holding, of standing, causal link)? Was there
SASU General Mills Holding, SAS Yoplait another outcome or remedy? EUR 0
France and SAS Yoplait
Is/was the case subject to appeal (yes/ Amount of damages initially requested:
pending/no)? If yes, briefly describe EUR 14.8 million
current status/outcome: Pending
Key Legal issues: Is the dispute likely to be settled
privately? N/A
• Interest in action
• Umbrella pricing
• Burden of proof
• Passing on
Direct or indirect claims? Direct Method of calculation of damages: N/A
Individual or collective claims? Individual Name and contact details of lawyer who
has drafted summary: Marie Louvet, Of
Counsel, Herbert Smith Freehills Paris LLP,
marie.louvet@hsf.com
Follow-on (EC or NCA?) or stand-alone?
Follow-on (FCA, Decision No 15-D-03,
partially annulled by Paris Court of Appeal
(23 May 2017), Appeal pending before the
French Supreme Court)
8 INTERNATIONAL CHAMBER OF COMMERCE (ICC)FRANCE
Brief summary of facts
Three companies of the Cora supermarket group sought compensation from dairy
companies fined by the French Competition Authority in the context of the “yoghurt cartel”
(FCA decision 15-D-03). Dairy companies were found to have participated in price fixing
agreements and market allocation practices for private label dairy products between 2006
and 2012. Claimants requested disclosure of documents in order to be able to quantify the
amount of damages.
Brief summary of judgment
The Court dismissed all of the claimants’ requests. Three points to note:
First, the Court declared Provera inadmissible since, as a central referencing office for the
supermarkets of the group, it did not purchase the products and thus had not shown that it
had suffered any damage. The admissibility of the other claimants, supermarkets Cora and
Match, was not challenged.
Second, regarding the ‘Umbrella pricing’, claimants argued that the prices charged by
manufacturers which did not participate in the cartel and prices of private label products
which were not targeted by the cartel had also risen because of the cartel. They also sought
compensation for such price increase. However the Court considered that claimants had not
evidenced any causal link between the practices and the alleged price increases.
Third, regarding the passing on, considering that the facts pre dated the entry into force of
the Ordinance and Decree (11 March 2017), the Court applied the previous regime and ruled
that claimants had not been able to provide relevant evidence on the level of passing on.
INTERNATIONAL CHAMBER OF COMMERCE (ICC) 9ICC COMPENDIUM OF ANTITRUST DAMAGES ACTIONS
Country: France
Case Name and Number: Tribunal de commerce de Paris, 1e ch., 1 October 2019, n°2017053369
Date of judgment: 1 October 2019
Economic activity (NACE Code): C21 — Manufacture of basic pharmaceutical products and
pharmaceutical preparations
Court: First instance commercial court Was pass on raised (yes/no)? No
Claimants: Caisse Nationale de l’Assurance (If in EU) Was the EU Damages Directive
Maladie des Travailleurs Salariés referred to/relied upon (and if so, for
(CNAMTS) procedural or substantive provisions)?
Directive 2014/104 not applicable in this
case (facts pre-dating entry into force of
Decree and Ordinance).
Defendants: SA Sanofi and SA Sanofi Were damages awarded (if so, how
Aventis France much and to whom)? If not, why not
(e.g. lack of standing, causal link)? Was
there another outcome or remedy? No
damages awarded
Is/was the case subject to appeal (yes/ Amount of damages initially requested:
pending/no)? If yes, briefly describe EUR 116 million
current status/outcome: Unknown
Key Legal issues: Is the dispute likely to be settled
privately? No
• Limitation period (starting point)
• Interruption of limitation period
Direct or indirect claims? Direct Method of calculation of damages: N/A
Individual or collective claims? Individual Name and contact details of lawyer who
has drafted summary: Marie Louvet, Of
Counsel, Herbert Smith Freehills Paris LLP,
marie.louvet@hsf.com
Follow-on (EC or NCA?) or stand-alone?
Follow-on (FCA, Decision No 13-D-11,
upheld by the Paris Court of Appeal (18
December 2014, No 2013/12370) and the
French Supreme Court (18 October 2016,
No 15-10.384))
10 INTERNATIONAL CHAMBER OF COMMERCE (ICC)FRANCE
Brief summary of facts
On 14 May 2013, following a complaint by TEVA, a generics manufacturer, the FCA fined
Sanofi EUR 40.6 million for abuse of dominance (disparaging the generic versions of
Plavix®). Decision was confirmed by the Paris Court of Appeal in December 2014 and the
French Supreme Court in October 2016.
The CNAMTS, a health insurance office, sought compensation for the overcharge paid to the
insured persons and pharmacists and brought a claim to the Paris commercial court on 12
September 2017.
Brief summary of judgment
Sanofi argued that the CNAMTS’ claim was time-barred since it became aware of the
disparaging practices when the FCA issued a decision on interim measures (in this case on
17 May 2010), or at least when it had to respond to several requests for information of the
FCA during the investigation in 2010 and 2011.
The Paris commercial court examined in concreto and in detail how CNAMTS had been
able to monitor Sanofi’s behaviour and how it had participated in the FCA investigation.
In particular, pointing out that, on 16 September 2011, CNAMTS provided to the FCA an
estimate of the damage suffered as a result of the practices, the court found that, at that
date, CNAMTS was aware of Sanofi’s practices, the fact that they were anti-competitive,
their effect on generics and the possible harm they may have caused.
The claim having been brought more than five years after 16 September 2011, the Court
considered it was time-barred.
CNAMTS also argued that, pursuant to Article L. 462-7, the limitation period had been
interrupted by TEVA’s complaint to the FCA on 2 November 2009. However, the Court
pointed out that the new provisions of Article L. 462-7, introduced by the 2014 Hamon Law,
were only applicable to facts arising after its entry into force. Therefore, it found that the
limitation period had not been interrupted in the case at hand, and dismissed CNAMTS’
claim.
INTERNATIONAL CHAMBER OF COMMERCE (ICC) 11ICC COMPENDIUM OF ANTITRUST DAMAGES ACTIONS
Country: France
Case Name and Number: Cour d’appel de Paris, Pôle 5 Ch. 4, 6 March 2019, n°17/21261
Date of judgment: 6 March 2019
Economic activity (NACE Code): C27.1.2 — Manufacture of electricity distribution and control
apparatus
Court: Paris Court of Appeal Was pass on raised (yes/no)? No
Claimants: SARL ARKEOS, SARL CAP (If in EU) Was the EU Damages Directive
ECO ENERGIE, SARL APEM ENERGIE, referred to/relied upon (and if so, for
SARL SOL’AIR CONFORT, SAS GAVRIANE, procedural or substantive provisions)?
SARL CAP SUD France (appellants) Directive 2014/104 not applicable in this
case (facts pre-dating entry into force of
Decree and Ordinance).
Defendants: EDF (SA Electricité de Were damages awarded (if so, how
France, SASU EDF Energies Nouvelles much and to whom)? If not, why not
Réparties, SASU EDF ENR Solaire) (e.g. lack of standing, causal link)? Was
there another outcome or remedy? No
damages or other remedies awarded.
Is/was the case subject to appeal (yes/ Amount of damages initially requested:
pending/no)? If yes, briefly describe Unknown (blanked out in the judgment).
current status/outcome: Unknown
Key Legal issues: Is the dispute likely to be settled
privately? No
• Limitation period (starting point)
• Interruption of limitation period
Direct or indirect claims? Direct Method of calculation of damages: N/A
Individual or collective claims? Individual Name and contact details of lawyer who
has drafted summary: Marie Louvet, Of
Counsel, Herbert Smith Freehills Paris LLP,
marie.louvet@hsf.com
Follow-on (EC or NCA?) or stand-alone?
Follow-on (FCA, Decision No 13-D-20,
partially upheld by the Paris Court of
Appeal (21 May 2015) and the French
Supreme Court (27 September 2017)
12 INTERNATIONAL CHAMBER OF COMMERCE (ICC)FRANCE
Brief summary of facts
On 8 April 2009, the FCA issued a decision imposing interim measures to EDF relating
to potential abusive practices in the photovoltaic solar power sector (favouring its own
subsidiary in an emerging market).
On 17 December 2013, it fined EDF for abuse of dominance. It was confirmed by the French
Supreme Court in 2017.
Arkeos and other companies active in the sale and installation of solar panels sought
compensation before the Paris Commercial Court on 11 September 2014. The Paris
commercial court considered that their claim was time-barred and dismissed it. It found that
the starting point of the limitation period was the FCA decision on interim measures of 8
April 2009.
Brief summary of judgment
The Court of Appeal quashed the commercial court’s judgment.
It considered, first, that the FCA decision ordering interim measures could not be the
starting point of the limitation period as it does not provide sufficient knowledge of the
practices to the victims to enable them to seek compensation. Only the decision on the
merits of 17 December 2013 provided such knowledge and was considered a relevant
starting point for the limitation period, Arkeos’ claim was thus regarded as not time-barred.
Even considering that the interim measure decision could be the relevant starting point, the
Court found that Arkeos’ claim was not time-barred, given that, when the new provisions of
Article L.462-7 on the interruption of the limitation period resulting from the opening of a
proceeding by the FCA entered into force on 19 March 2014, the five-year limitation period
would not have had lapsed (would have expired on 8 April 2014). As a result, the Court
ruled that the limitation period had been suspended until the date when the FCA decision
on the merits became final (with the ruling of the Paris Court of Appeal on this decision of
21 May 2015).
However, the Court found that Arkeos and the other appellants had not evidenced any
causal link between EDF’s practices and the alleged harm. Therefore, it dismissed their
claims.
INTERNATIONAL CHAMBER OF COMMERCE (ICC) 13ICC COMPENDIUM OF ANTITRUST DAMAGES ACTIONS
Country: France
Case Name and Number: CA Paris, pôle 5, ch.4, 12 September 2018, n°18/04914
Date of judgment: 12 September 2018
Economic activity (NACE Code): R.92.0.0 — Gambling and betting activities
Court: Court of Appeal (Paris) Was pass on raised (yes/no)? No
Claimants: Betclic (If in EU) Was the EU Damages Directive
referred to/relied upon (and if so, for
procedural or substantive provisions)?
Applicability of the Directive was
discussed since the FCA did not impose
any fine on PMU (commitment decision).
Defendants: GIE Pari Mutuel Urbain (PMU) Were damages awarded (if so, how much
(Appellant) and to whom)? If not, why not (e.g. lack
of standing, causal link)? Was there
another outcome or remedy? An expert
opinion has been commissioned.
Is/was the case subject to appeal (yes/ Amount of damages initially requested:
pending/no)? If yes, briefly describe EUR 172.2 million
current status/outcome: Yes — Appeal
before the Supreme Court was rejected.
First instance judgment: TGI Paris, 5è ch.,
2e section, 22 February 2018, RG15/09129.
Key Legal issues: Is the dispute likely to be settled
privately? N/A
• Monopoly
• Abuse of dominant position
Direct or indirect claims? Direct Method of calculation of damages: N/A
Individual or collective claims? Individual Name and contact details of lawyer who
has drafted summary: Marie Louvet, Of
Counsel, Herbert Smith Freehills Paris LLP,
marie.louvet@hsf.com
Follow-on (EC or NCA?) or stand-alone?
Follow-on (FCA decision No. 14-D-
04) — PMU offered commitments to the
FCA and did not receive any fine
14 INTERNATIONAL CHAMBER OF COMMERCE (ICC)FRANCE
Brief summary of facts
PMU, active in the horse and sports betting services as well as poker game services, holds a
monopolistic position in France in the organisation of horse betting services in its brick-and-
mortar network. PMU also offers online horse and sports betting services, as well as online
poker game services. Betclic offers online sports and horse betting services and online
poker game services only (no offline services).
Until 2015, PMU used to pool the amount of bets placed online and offline.
Betclic considered that this provided the PMU website with a unique competitive
advantage.
Brief summary of judgment
The Court of Appeal considered that PMU had abused of its dominant position by pooling
the amount of online and offline bets and thus benefiting from unfair competitive advantage
in an emerging market to the detriment of competing operators. Concerning the amount of
damages, the court stayed the proceedings and referred to an expert’s report.
INTERNATIONAL CHAMBER OF COMMERCE (ICC) 15ICC COMPENDIUM OF ANTITRUST DAMAGES ACTIONS
Country: France
Case Name and Number: CA Paris, 8 June 2018, n°16/19147
Date of judgment: 8 June 2018
Economic activity (NACE Code): J.61 — Telecommunications
Court: Court of Appeal (Paris) Was pass on raised (yes/no)? No
Claimants: SFR (If in EU) Was the EU Damages Directive
referred to/relied upon (and if so, for
procedural or substantive provisions)?
Directive 2014/104 not applicable in this
case (facts pre-dating entry into force of
Decree and Ordinance).
Defendants: SA Orange (Appellant) Were damages awarded (if so, how much
and to whom)? If not, why not (e.g. lack
of standing, causal link)? Was there
another outcome or remedy? EUR 52.95
million
Is/was the case subject to appeal (yes/ Amount of damages initially requested:
pending/no)? If yes, briefly describe EUR 181,52 million
current status/outcome: Yes — Supreme
Court 16 September 2020, 18/21615 (partial
annulment and referral to the Court of
Appeal).
Key Legal issues: Is the dispute likely to be settled
privately? N/A
• Unfair Competition
• Predatory pricing
• Substitutability
• Discrimination in favour of one’s own
subsidiary
Direct or indirect claims? Direct Method of calculation of damages: N/A
Individual or collective claims? Individual Name and contact details of lawyer who
has drafted summary: Marie Louvet, Of
Counsel, Herbert Smith Freehills Paris LLP,
marie.louvet@hsf.com
16 INTERNATIONAL CHAMBER OF COMMERCE (ICC)FRANCE
Follow-on (EC or NCA?) or stand-alone?
Stand-alone
Previous rulings: Judgment of first
instance (12 February 2014) found Orange
guilty; the Paris Court of Appeal (8
October 2014) overturned the judgment;
French Supreme court (12 April 2016)
overturned the appeal judgment and
referred the case back to the Court of
Appeal
Brief summary of facts
Orange had marketed an offer whereby owners of second homes could suspend their line at
a low cost when their second home was unoccupied. SFR wanted to develop a competing
offer but was not able to because of the monthly fees paid to the incumbent operator.
Brief summary of judgment
The Court held that Orange was required to submit offers that enabled its competitors
to operate under satisfactory/reasonable pricing conditions. The Court considered that
Orange’s refusal to suspend the fees was abusive, as it was likely to prevent competitors
from marketing a similar offer. It however refused to consider that tying of the second
homes and the primary homes’ offers were constitutive of an abuse. The Court therefore
granted damages (EUR 52.95 million) only for the prejudice suffered from 2010 to 2016
relating to margin squeeze and sales below cost practices.
INTERNATIONAL CHAMBER OF COMMERCE (ICC) 17ICC COMPENDIUM OF ANTITRUST DAMAGES ACTIONS
Country: France
Case Name and Number: CA Paris, ch.5-4, 11 avril 2018, n°14/14758
Date of judgment: 27 May 2015
Economic activity (NACE Code): J.61 — Telecommunications
Court: Court of Appeal (Paris) Was pass on raised (yes/no)? No
Claimants: Lectiel (If in EU) Was the EU Damages Directive
referred to/relied upon (and if so, for
procedural or substantive provisions)?
Directive 2014/104 not applicable in this
case (facts pre-dating entry into force of
Decree and Ordinance).
Defendants: SA Orange Were damages awarded (if so, how much
and to whom)? If not, why not (e.g. lack
of standing, causal link)? Was there
another outcome or remedy? EUR 2.5
million
Is/was the case subject to appeal (yes/ Amount of damages initially requested:
pending/no)? If yes, briefly describe EUR 307 million
current status/outcome: Case back before
the Court of Appeal after second annulment
by the French Supreme Court (Cass. Com., 3
juin 2014, n° 12-29482)
Previous ruling:
Paris Commercial Court, 5 January 1994 (no
damages awarded)
Paris Court of Appeal, 30 September 2008
Supreme Court, 23 March 2010, partial
annulment only regarding the dismissal of
damages to be paid by Orange
Paris Court of Appeal, 27 June
2012 — confirmed the initial judgment
Supreme Court, 3 June 2014, annulment
Paris Court of Appeal, 27 May 2015
(damages awarded for abuse of dominance
and failure to comply with commitments)
18 INTERNATIONAL CHAMBER OF COMMERCE (ICC)FRANCE
Key Legal issues: Is the dispute likely to be settled
privately? N/A
• Monopoly / Abuse of dominance
• Market foreclosure
• Essential facilities
• Margin squeeze
Direct or indirect claims? Direct Method of calculation of damages: N/A
Individual or collective claims? Individual Name and contact details of lawyer who
has drafted summary: Marie Louvet, Of
Counsel, Herbert Smith Freehills Paris LLP,
marie.louvet@hsf.com
Follow-on (EC or NCA?) or stand-alone?
Follow-on (FCA Decisions No 98-D-60
and No 03-D-43 (failure to comply with
commitments imposed in Decision No 98-
D-60))
Brief summary of facts
Orange, the French incumbent telecom operator, refused to provide Lectiel with a list of
telephone subscribers. Orange offered to provide the list through a dedicated telematics
service but Lectiel argued that the rate charged for such service was excessive.
The FCA concluded that Orange was in a dominant position on the market for prospecting
databases and had abused such a dominant position as it prevented new entrants from
entering the market and the development of technical innovation on such market.
Brief summary of judgment
The Court held that Orange was required to submit offers that enabled its The Court of
Appeal considered that Orange has abused its dominance and appointed an expert in order
to assess Lectiel’s prejudice as the latter did not provide enough information for the Court
to rule on the amount of damages.
The Court also upheld the first ruling of the Paris Court of Appeal as regards damages to be
paid by Lectiel to Orange for illegal downloading of the list of phone subscribers.
INTERNATIONAL CHAMBER OF COMMERCE (ICC) 19ICC COMPENDIUM OF ANTITRUST DAMAGES ACTIONS
Country: France
Case Name and Number: CA Paris, pôle 5, ch.4, 20 December 2017, n°15/07266
Date of judgment: 20 December 2017
Economic activity (NACE Code): E.38.2 — Waste treatment and disposal
Court: Court of Appeal (Paris) Was pass on raised (yes/no)? No
Claimants: SARL DKT International (If in EU) Was the EU Damages Directive
referred to/relied upon (and if so, for
procedural or substantive provisions)?
Directive 2014/104 not applicable in this
case (facts pre-dating entry into force of
Decree and Ordinance).
Defendants: Were damages awarded (if so, how much
SA ECO-Emballages (Appellant) and to whom)? If not, why not (e.g. lack
SA Valorplast (Appellant) of standing, causal link)? Was there
another outcome or remedy? No (lack of
fault)
Is/was the case subject to appeal (yes/ Amount of damages initially requested:
pending/no)? If yes, briefly describe EUR 350,000
current status/outcome: No
Key Legal issues: Is the dispute likely to be settled
privately? No
• Abuse of dominant position
• Disparagement
• Discrimination
• Collusive behaviour
Direct or indirect claims? Direct Method of calculation of damages: N/A
Individual or collective claims? Individual Name and contact details of lawyer who
has drafted summary: Marie Louvet, Of
Counsel, Herbert Smith Freehills Paris LLP,
marie.louvet@hsf.com
Follow-on (EC or NCA?) or stand-alone?
Follow-on (NCA) — ECO-Emballage and
Valorplast offered commitments to the
FCA and did not receive any fine (see FCA
decision No. 10-D-29 of 27 September
2010).
20 INTERNATIONAL CHAMBER OF COMMERCE (ICC)FRANCE
In first instance judgment, the Commercial
Court (30 March 2015) found guilty the
defendants and awarded EUR 400.000.
Brief summary of facts
Eco-Emballage is a public company in charge of the collecting and recycling of household
packaging waste. It has concluded an agreement with Valorplast for recycling plastic.
In 2004, DKT was created to recover household plastic waste. DKT reported allegedly
abusive eviction practices (in particular, disparagement practices) from Eco-emballages and
Valorplast to the FCA.
The FCA did not rule on the existence of an abuse of dominance as Eco-emballages and
Valorplast committed to publish online a “vademecum” for household plastic waste recovery
to provide local administrations with more information to enable them to make a more
enlightened choice, to allow local administrations to change recovery methods during the
six-year contractual period, and to offer available tonnages to recyclers that are not yet tied
to it by long-term contracts.
Brief summary of judgment
The Court of Appeal therefore had to concretely assess whether there was a restriction of
competition. It found that there was no restriction of competition for the following reasons:
i. the towns with which Eco-Emballages has contracted could put an end to the
contract at any time,
ii. Eco-Emballage was bound by the requirements set up by the public authorities as
part of the approval by the Ministry for Ecology,
iii. there was no proof of disparagement or discrimination against DKT and
iv. there was no sufficient evidence of collusive behaviour between Eco-Emballages et
Valorplast.
The Court therefore did not grant any damages to DKT.
INTERNATIONAL CHAMBER OF COMMERCE (ICC) 21ICC COMPENDIUM OF ANTITRUST DAMAGES ACTIONS
Country: France
Case Name and Number: CA Paris, 20 September 2017, n°12/04441
Date of judgment: 20 September 2017
Economic activity (NACE Code): C28.92 — Manufacture of machinery for mining, quarrying and
construction
Court: Court of Appeal (Paris) Was pass on raised (yes/no)? No
Claimants: SAS Central Parts (If in EU) Was the EU Damages Directive
referred to/relied upon (and if so, for
procedural or substantive provisions)?
Directive 2014/104 not applicable in this
case (facts pre-dating entry into force of
Decree and Ordinance).
Defendants: JCB SALES (Appellant) Were damages awarded (if so, how much
and to whom)? If not, why not (e.g. lack
of standing, causal link)? Was there
another outcome or remedy?
Damages: EUR 1.5 million
EUR 40,000 (internal costs)
EUR 41,000 (expert fees)
Is/was the case subject to appeal (yes/ Amount of damages initially requested:
pending/no)? If yes, briefly describe EUR 3.2 milllion (Appeal)
current status/outcome: No
Previous rulings:
Orleans Commercial Court — 4 June 2008:
Award of EUR 600,000 to Central Parts.
Orleans Court of Appeal — 1st April
2010: request for an expert’s opinion on
damages.
French Supreme Court — 15 November 2011
: annulment on the basis that “the JCB
group” had no legal personality
Paris Court of Appeal — 26 June 2013:
confirmed the existence of an infringement
and the causal link with the prejudice
suffered by Central Parts. Request for an
expert’s opinion on damages.
French Supreme Court — 6 October 2015:
confirmation of the previous judgment.
22 INTERNATIONAL CHAMBER OF COMMERCE (ICC)FRANCE
Key Legal issues: Is the dispute likely to be settled
privately? N/A
• Refusal to sell
• Damage quantification
Direct or indirect claims? Direct Method of calculation of damages: N/A
Individual or collective claims? Individual Name and contact details of lawyer who
has drafted summary: Marie Louvet, Of
Counsel, Herbert Smith Freehills Paris LLP,
marie.louvet@hsf.com
Follow-on (EC or NCA?) or stand-alone?
Follow-on (EC decision No COMP/35.918),
partially upheld (fine reduced from EUR
39 to 30 million) by the Tribunal of the
European Union (T-67/01 JCB Service v.
Commission) and confirmed by the Court
of Justice (C-167/04 P JCB Service v.
Commission)
Brief summary of facts
The JCB companies manufacture and market construction site machinery, earthmoving
and construction equipment and agricultural machinery as well as the spare parts for those
various products. They were found guilty by the European Commission of abusive refusal
to sell. Indeed JCB refused that its selected distributors resold its products outside their
allocated territories.
To circumvent such prohibition, Central Parts set up ad hoc companies which would
purchase JCB Sales products from one of the authorised distributors in the UK in order to
be able to resell them in France. JCB Sales became aware of this practice and the distributor
stopped supplying Central Parts’ ad hoc companies.
In 2005, Central Parts brought an action for damages against the JCB companies before
the commercial Court. The Commercial Court ordered the JCB companies to pay EUR
600,000 to the claimant. An appeal was lodged and an expert was appointed to quantify
the damage.
Brief summary of judgment
The Paris Court of Appeal confirmed the judgment of first instance except as regards the
amount of damages which went up from EUR 600.000 to 1.5 million.
The Court upheld that damages should include any proven loss of earnings. In this case, the
Court considered that the following damages should be taken into account:
b overcharges for setting up the ad hoc companies;
INTERNATIONAL CHAMBER OF COMMERCE (ICC) 23ICC COMPENDIUM OF ANTITRUST DAMAGES ACTIONS
b staff costs dedicated to the logistics (but not the procurement staff costs as their role
was not dedicated to circumventing the abusive practice);
b margin loss for new vehicles; and
b margin loss for spare parts.
Conversely, the Court considered that the following damage could not be accepted for lack
of (sufficient) evidence:
b Financial costs related to the procurement activity;
b Margin loss for used vehicles.
24 INTERNATIONAL CHAMBER OF COMMERCE (ICC)FRANCE
Country: France
Case Name and Number: CA Paris, 5 July 2017, n°15/12365
Date of judgment: 5 July 2017
Economic activity (NACE Code): G45.3 — Sale of motor vehicle parts and accessories
Court: Court of Appeal (Paris) Was pass on raised (yes/no)? No
Claimants: SAS SCPI (Société de (If in EU) Was the EU Damages Directive
commercialisation de produits industriels) referred to/relied upon (and if so, for
SIFAM Trading procedural or substantive provisions)?
Directive 2014/104 not applicable in this
case (facts pre-dating entry into force of
Decree and Ordinance).
Defendants: SAS NGK SPARK PLUGS Were damages awarded (if so, how much
France (appellant) and to whom)? If not, why not (e.g. lack
of standing, causal link)? Was there
another outcome or remedy? EUR 193,246
Is/was the case subject to appeal (yes/ Amount of damages initially requested:
pending/no)? If yes, briefly describe EUR 193,246
current status/outcome: No
Previous rulings:
Paris Commercial Court, 9 June 2015:
injunction to deliver the orders with
penalty, to apply commercial terms and
conditions applicable to NGK’s official
distributors, EUR 230,000 damages
Paris Court of Appeal, 16 December 2015:
squashed the first judgment (refusal to sell
were legitimate)
Supreme Court, 21 June 2017 confirmed
the judgment of the Court of Appeal
(lack of potential and actual effect of
foreclosure of the refusal to sell)
Key Legal issues: Is the dispute likely to be settled
privately? N/A
• Abuse of dominant position
• Refusal to sell
Direct or indirect claims? Direct Method of calculation of damages: N/A
INTERNATIONAL CHAMBER OF COMMERCE (ICC) 25ICC COMPENDIUM OF ANTITRUST DAMAGES ACTIONS
Individual or collective claims? Individual Name and contact details of lawyer who
has drafted summary: Marie Louvet, Of
Counsel, Herbert Smith Freehills Paris LLP,
marie.louvet@hsf.com
Follow-on (EC or NCA?) or stand-alone?
Stand-alone
Brief summary of facts
NGK is an international manufacturer of spark plugs and distributes its products through
a network of national subsidiaries in the EU (such as NGK Spark Plugs France). SIFAM
expressed its interest in becoming an authorised distributor of NGK’s products. NGK refused
on the ground that it was not considering extending its distribution network at that time.
Four years later, NGK agreed to include SIFAM in its French distribution network. However,
NGK refused to sell its products to SIFAM without any objective justification.
Brief summary of judgment
The Paris Court of Appeal considered that the manufacturer NKG (with a market share
exceeding 50%) was a technological leader, whose products were essential and not
substitutable with competing products. The Court found that NKG had abused of its
dominant position because such refusal to sell was likely to exclude the distributor from the
market and had no objective justification. The Court granted damages to SCPI and upheld
the judgment of the court of first instance to the extent that it ordered NKG to deliver the
products ordered and to apply for each SCPI order (past and present) the price and rebate
conditions it applies to its own distributors.
It is worth noting that the Court took into account that the amount of damages requested
was below the expert’s estimate — as SIFAM did not ask for damages for loss of earning of
products other than spark plugs — to award damages calculated on the basis of SIFAM’s
most favourable margin (damages amounted to the loss of margin over a two-year
period which was calculated on the basis of the margin on the sale of US-imported spark
plugs — which was the most favourable to the claimant).
26 INTERNATIONAL CHAMBER OF COMMERCE (ICC)FRANCE
Country: France
Case Name and Number: TGI Lille, 6 June 2017, n°15/10938
Date of judgment: 6 June 2017
Economic activity (NACE Code): C.20.41 Manufacture of soap and detergents, cleaning and
polishing preparations
Court: First instance civil court Was pass on raised (yes/no)? No
Claimants: Mme Vauchelin (If in EU) Was the EU Damages Directive
referred to/relied upon (and if so, for
procedural or substantive provisions)?
Directive 2014/104 not applicable in this
case (facts pre-dating entry into force of
Decree and Ordinance).
Defendants: Sociétés Colgate Palmolive, Were damages awarded (if so, how much
Henkel, Unilever, Procter et Gamble, and to whom)? If not, why not (e.g. lack
Reckitt Benckiser of standing, causal link)? Was there
another outcome or remedy? EUR 0
The claimant (a consumer) did not
accurately quantify her damages and did
not prove that she had indeed purchased
the products affected by an overcharge.
Is/was the case subject to appeal (yes/ Amount of damages initially requested:
pending/no)? If yes, briefly describe EUR 2,400
current status/outcome: No
Key Legal issues: Is the dispute likely to be settled
privately? N/A
• Limitation period (starting point)
Direct or indirect claims? Direct Method of calculation of damages: N/A
Individual or collective claims? Individual Name and contact details of lawyer who
has drafted summary: Marie Louvet, Of
Counsel, Herbert Smith Freehills Paris LLP,
marie.louvet@hsf.com
Follow-on (EC or NCA?) or stand-alone?
Follow-on (FCA decision No. 14-D-19).
Partial reversal by Paris Court of Appeal
(27 October 2016, 2015/01673).
INTERNATIONAL CHAMBER OF COMMERCE (ICC) 27ICC COMPENDIUM OF ANTITRUST DAMAGES ACTIONS
Brief summary of facts
Home care and personal care manufacturers such as Colgate-Palmolive, Henkel, Unilever,
Procter & Gamble, Reckitt Benckiser were fined by the FCA for coordinating their
commercial policies towards supermarkets, in particular price increases.
Brief summary of judgment
A consumer brought an action before commercial courts for the alleged overcharge she
allegedly paid for the products subject to the cartel. The commercial court dismissed the
claim for damages as the claimant did not bring sufficient evidence of the damage suffered.
Interesting to note is the Court’s view on the starting point of the limitation period for
lodging a request for damages. Without expressly stating it, it can be inferred from the
judgment that the Court considered that the limitation period should start from the date of
publication of the sentencing decision as it could not be proven that the claimant was aware
of the anti-competitive practices or had read relevant press articles on the case which were
published prior to the FCA decision.
28 INTERNATIONAL CHAMBER OF COMMERCE (ICC)FRANCE
Country: France
Case Name and Number: CA Paris, pôle 5, ch.4, 10 May 2017, n°15/05918
Date of judgment: 10 May 2017
Economic activity (NACE Code): J.61 — Telecommunications
Court: Court of Appeal (Paris) Was pass on raised (yes/no)? No
Claimants: SAS Outremer Telecom (If in EU) Was the EU Damages Directive
referred to/relied upon (and if so, for
procedural or substantive provisions)?
Directive 2014/104 not applicable in this
case (facts pre-dating entry into force of
Decree and Ordinance).
Defendants: SA Orange Caraïbe Were damages awarded (if so, how much
(Appellant) and to whom)? If not, why not (e.g. lack
of standing, causal link)? Was there
another outcome or remedy? EUR 2.6
million
Is/was the case subject to appeal (yes/ Amount of damages initially requested:
pending/no)? If yes, briefly describe EUR 40.932 million
current status/outcome: No
Previous ruling: Paris Commercial Court, 16
March 2015, No. 2010073867
Key Legal issues: Is the dispute likely to be settled
privately? N/A
• Causal link between fault and damage
• Exclusivity clauses
• Customer loyalty programme
• Discriminatory practices
Direct or indirect claims? Direct Method of calculation of damages: N/A
Individual or collective claims? Individual Name and contact details of lawyer who
has drafted summary: Marie Louvet, Of
Counsel, Herbert Smith Freehills Paris LLP,
marie.louvet@hsf.com
INTERNATIONAL CHAMBER OF COMMERCE (ICC) 29ICC COMPENDIUM OF ANTITRUST DAMAGES ACTIONS
Follow-on (EC or NCA?) or stand-alone?
Follow-on (FCA decision No. 09-D-36,
upheld by the Paris Court of Appeal
(23 September 2010, 2010/00163), then
annulled by French Supreme Court (31
January 2012, 10-25.772), upheld again by
the Paris Court of Appeal (4 July 2013)
and the French Supreme Court (6 January
2015, 13-21.305))
Brief summary of facts
Orange Caraïbe has: (i) imposed exclusivity clauses in distribution agreements with its
independent distributors; (ii) applied an exclusivity clause inserted in a contract concluded
with Cetelec, the sole authorised repairman of terminals in the Caribbeans; (iii) set up
a customer loyalty programme; (iv) practised abusive price differentiation between “on
net” and “off net” calls; (v) was positively discriminated by its parent company through a
specific offer for professionals which could only be granted by Orange Caraibes; and (vi)
implemented resale price maintenance.
Brief summary of judgment
The Court of Appeal partly overturned the judgment rendered by the Commercial Court
(EUR 7.9 million) and considered that, for some of the abusive practices at stake, there was
no evidence or sufficient evidence of a causal link between these practices and the damage
claimed by Outremer Télécom.
Regarding the exclusivity clauses included by Orange in its distribution agreements,
Outremer Telecom claimed that, as a result of such practices, it was unable to conclude
contracts with independent distributors for the distribution of its own telephony offers and
decided to set up its own points of sale. However, the Paris Court of Appeal pointed out
that Outremer Telecom had made its own strategic and commercial development choices,
without evidencing that they were related to the practices at stake.
Second point of interest, on the quantification of damages: the Court also pointed out
that full compensation also includes compensation for the negative effects resulting from
the lapse of time since the occurrence of the damaging event (the infringement), namely
monetary erosion, but also the loss of opportunity suffered as a result of the unavailability
of capital. However, regarding the quantification of such loss of opportunity, the Court ruled
that, unless the claimant is able to show that it had to give up investment projects because
of such capital unavailability, the loss must be assessed by applying the legal interest rate to
the amount the claimant has been deprived of, and not the weighted average cost of capital
(WACC).
As a consequence, the amount of damages to be paid was reduced from EUR 7.9 million to
2.6 million.
30 INTERNATIONAL CHAMBER OF COMMERCE (ICC)FRANCE
Country: France
Case Name and Number: CA Paris,Pôle 5, ch.4, 14 December 2016, n°13/08975
Date of judgment: 14 December 2016
Economic activity (NACE Code): N.79 — Travel agency, tour operator and other reservation
service and related activities
Court: Court of Appeal (Paris) Was pass on raised (yes/no)? No
Claimants: Switch (If in EU) Was the EU Damages Directive
referred to/relied upon (and if so, for
procedural or substantive provisions)?
Directive 2014/104 not applicable in this
case (facts pre-dating entry into force of
Decree and Ordinance).
Defendants: SNCF Mobilités (Appellant) Were damages awarded (if so, how much
and to whom)? If not, why not (e.g. lack
of standing, causal link)? Was there
another outcome or remedy? EUR 6.9
million
Is/was the case subject to appeal (yes/ Amount of damages initially requested:
pending/no)? If yes, briefly describe EUR 8.59 million
current status/outcome: Confirmed by the
French Supreme Court (Cour de cassation,
Ch. Commerciale, 29 January 2020, No.
17-15.156).
Key Legal issues: Is the dispute likely to be settled
privately? No
• Loss of opportunity vs certain loss
Direct or indirect claims? Direct Method of calculation of damages: N/A
Individual or collective claims? Individual Name and contact details of lawyer who
has drafted summary: Marie Louvet, Of
Counsel, Herbert Smith Freehills Paris LLP,
marie.louvet@hsf.com
Follow-on (EC or NCA?) or stand-alone?
Follow-on (FCA, Decision 09-D-06),
upheld by Paris Court of Appeal, 23
February 2010 and Supreme Court , 16
April 2013
INTERNATIONAL CHAMBER OF COMMERCE (ICC) 31ICC COMPENDIUM OF ANTITRUST DAMAGES ACTIONS
Brief summary of facts
An SNCF subsidiary (now SNCF Mobilités) teamed up with Expedia (the worldwide leader
in online travel sales) to create a joint venture to offer non-rail travel agency services on the
website voyages-sncf.com. Other travel agencies were not able to offer similar promotional
offers or functionalities than those available on voyages-sncf.com and some agencies,
including Switch, brought a complaint to the FCA. Expedia and SNCF were fined by the
FCA and offered commitments (other travel agencies being now on an equal footing with
voyages-sncf.com). Switch sought compensation before the Paris commercial court.
Brief summary of judgment
The Court of Appeal awarded EUR 6.9 million damages to Switch, considering that Switch
suffered a loss of revenue resulting from missed opportunity to offer its services to SNCF’s
international rail customers. It considered that Switch had not suffered from a mere loss of
opportunity, but from identifiable harm resulting from the loss of customers who preferred
buying tickets and other services on voyages-sncf.com. The Court of Appeal’s reasoning
seems questionable as it accepted that it was not possible to foresee how the market would
have otherwise evolved (and to quantify the number of customers Switch actually lost as a
result of the practices), it still considered that the loss suffered was certain.
The Court of Appeal’s approach has been confirmed by the French Supreme Court (29
January 2020, 17-15.156).
32 INTERNATIONAL CHAMBER OF COMMERCE (ICC)FRANCE
Country: France
Case Name and Number: A Paris, ch.5-4, 7 December 2016, RG 14/01036
Date of judgment: 7 December 2016
Economic activity (NACE Code): J.58.1.9 — Other publishing activities
Court: Court of Appeal (Paris) Was pass on raised (yes/no)? No
Claimants: Aviscom (If in EU) Was the EU Damages Directive
referred to/relied upon (and if so, for
procedural or substantive provisions)?
Directive 2014/104 not applicable in this
case (facts pre-dating entry into force of
Decree and Ordinance).
Defendants: SA La Montagne (appellant) Were damages awarded (if so, how much
SAS Centre France Publicité(appellant) and to whom)? If not, why not (e.g. lack
SAS Dans nos cœurs (appellant) of standing, causal link)? Was there
another outcome or remedy? EUR 10 000
Is/was the case subject to appeal (yes/ Amount of damages initially requested:
pending/no)? If yes, briefly describe EUR 635 000
current status/outcome: No
Key Legal issues: Is the dispute likely to be settled
privately? N/A
• Assessment of prejudice
Direct or indirect claims? Direct Method of calculation of damages: N/A
Individual or collective claims? Individual Name and contact details of lawyer who
has drafted summary: Marie Louvet, Of
Counsel, Herbert Smith Freehills Paris LLP,
marie.louvet@hsf.com
Follow-on (EC or NCA?) or stand-alone?
Stand-alone
Brief summary of facts
Aviscom operates a website for obituaries and condolences. It claimed that the newspaper
La Montagne and the company “Dansnoscoeurs” it set up with other newspapers and
which competes with Aviscom committed unfair commercial practices and abused their
dominance. Disputed practices were related to the fact that (i) In the obituaries published
INTERNATIONAL CHAMBER OF COMMERCE (ICC) 33ICC COMPENDIUM OF ANTITRUST DAMAGES ACTIONS
in its newspaper, La Montagne, only referred to the website of Dansnoscoeurs and (ii) the
obituary was published both in a newspaper and online, with no information provided on
the costs of each of these means of publication.
Brief summary of judgment
The Paris Court of Appeal upheld the judgment of first instance except for the amount of
damages. The Court confirmed that the tying of the publication of an obituary in written
and online press constituted (i) an abuse of dominance as it foreclosed the market as well
as (ii) unfair commercial practices, but reduced the amount of damages from EUR 50,000
to EUR 10,000.
The Court considered that the loss of opportunity to increase its market shares was the only
damage to be compensated for.
34 INTERNATIONAL CHAMBER OF COMMERCE (ICC)FRANCE
Country: France
Case Name and Number: CA Paris, Pôle 5, ch.4, 13 April 2016, n°13/24840
Date of judgment: 13 April 2016
Economic activity (NACE Code): H.53 — Postal and courier activities
Court: Court of Appeal (Paris) Was pass on raised (yes/no)? No
Claimants: (If in EU) Was the EU Damages Directive
SARL Imperial Pub referred to/relied upon (and if so, for
SARL GPS procedural or substantive provisions)?
Directive 2014/104 not applicable in this
case (facts pre-dating entry into force of
Decree and Ordinance).
Defendants: Were damages awarded (if so, how much
SA La Poste and to whom)? If not, why not (e.g. lack
SAS Mediapost of standing, causal link)? Was there
another outcome or remedy? No
Is/was the case subject to appeal (yes/ Amount of damages initially requested:
pending/no)? If yes, briefly describe EUR 1.8 million
current status/outcome: No
Previous ruling: Paris Commercial Court,
22 November 2013 (claims unfounded)
Key Legal issues: Is the dispute likely to be settled
privately? No
• Predatory pricing
• Causal link between fault and prejudice
Direct or indirect claims? Direct Method of calculation of damages: N/A
Individual or collective claims? Collective Name and contact details of lawyer who
has drafted summary: Marie Louvet, Of
Counsel, Herbert Smith Freehills Paris LLP,
marie.louvet@hsf.com
Follow-on (EC or NCA?) or stand-alone?
Stand-alone
INTERNATIONAL CHAMBER OF COMMERCE (ICC) 35ICC COMPENDIUM OF ANTITRUST DAMAGES ACTIONS
Brief summary of facts
Imperial Pub and GPS, active on the market for distribution of unsolicited advertising
leaflets, claimed that Mediapost, which is also present on this market and a subsidiary of
La Poste (French universal postal service provider), benefited from unfair advantages due
to the fact that it was a subsidiary of the dominant player, La Poste. Imperial Pub and GPS
argued in particular that Mediapost was engaged in predatory pricing.
Brief summary of judgment
The Court dismissed the claimants’ arguments for lack of sufficient evidence. In particular,
claimants did not prove that the loss of clients from which they allegedly suffered resulted
from an unfair pricing practice. The Court pointed out that, to be found abusive, a low
pricing practice must be sufficiently permanent and widespread so that it appears as part of
a strategy. The mere loss of one client does not characterise as such a practice.
36 INTERNATIONAL CHAMBER OF COMMERCE (ICC)FRANCE
Country: France
Case Name and Number: CA Paris, Pôle 5, ch.4, 25 November 2015, n°12/02931
Date of judgment: 25 November 2015
Economic activity (NACE Code): J.63.12 — Web portals
Court: Court of Appeal (Paris) Was pass on raised (yes/no)? No
Claimants: Société Evermaps (If in EU) Was the EU Damages Directive
referred to/relied upon (and if so, for
procedural or substantive provisions)?
Directive 2014/104 not applicable in this
case (facts pre-dating entry into force of
Decree and Ordinance).
Defendants: SARL Google France, Société Were damages awarded (if so, how much
Google Inc (appellant) and to whom)? If not, why not (e.g. lack
of standing, causal link)? Was there
another outcome or remedy? No
Is/was the case subject to appeal (yes/ Amount of damages initially requested:
pending/no)? If yes, briefly describe EUR 744,000
current status/outcome: No
Previous ruling: Paris Commercial Court, 31
December 2012 (EUR 500,000 awarded to
the claimant)
Key Legal issues: Is the dispute likely to be settled
privately? N/A
• Abuse of dominant position — predatory
pricing
• Forclosure
• Evidence of fault (anti-competitive
behaviour)
Direct or indirect claims? Direct Method of calculation of damages: N/A
Individual or collective claims? Individual Name and contact details of lawyer who
has drafted summary: Marie Louvet, Of
Counsel, Herbert Smith Freehills Paris LLP,
marie.louvet@hsf.com
Follow-on (EC or NCA?) or stand-alone?
Stand-alone
INTERNATIONAL CHAMBER OF COMMERCE (ICC) 37You can also read
