The texts published are drafted in their original language and are not subject to any translation.
Competition
class action
Follow-on class action based on findings of anti-competitive practices
In order, inter alia, to enable compensation for harm resulting from cartels (as in the Cartelmobile case), abuses of dominant position, abuses of economic dependence, and predatory pricing, the class action mechanism under the Consumer Code also covers a segment of competition law, namely anti-competitive practices (Consumer Code, Articles L.623-24 to L.623-26).
​
In this context, the class action is a “follow-on” action, as the liability of the professional may only be established on the basis of a decision rendered against the professional by the competent national or European Union authorities or courts, which finds the infringement and is no longer subject to appeal with regard to the establishment of the infringement. The follow-on class action must be brought within five years from the date on which the aforementioned decision is no longer subject to appeal.
​
Under the version originally adopted by the Hamon Act (Consumer Code, former Article L.423-17), it was provided that: “In such cases, the professional’s infringements shall be deemed irrefutably established for the purposes of Article L.423-3” (concerning the notion of an irrebuttable presumption). Ordinance No. 2017-303 of 9 March 2017, transposing Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union, removed this presumption. The relevant provision now appears in Article L.481-2, paragraph 1(2), of the Commercial Code.
Subjective and Objective Difficulties
The class action mechanism is limited to consumers who are natural persons (Consumer Code, preliminary article). Consequently, small and medium-sized enterprises (SMEs) and other legal persons that are victims of anti-competitive practices are not entitled to join a class action in order to benefit from it. Nor may they initiate such an action directly, whether through ad hoc associations (which lack standing to sue) or through associations with five years’ seniority. Indeed, the “common core” regime has explicitly excluded consumer and competition class actions from its scope.
​
Furthermore, the question arises as to whether a class action may be brought following a decision of the Ministry of the Economy concerning minor anti-competitive practices. While the Code remains silent on this issue, the circular accompanying the Decree of 24 September 2014 appears explicitly to exclude such a possibility.
Derogatory Rules in Matters of Anti-Competitive Practices
Unlike the common rules governing consumer class actions, the court may order publicity measures for the purpose of group adhesion before the judgment has become final, in order to allow consumers to join the group within the prescribed time limit.
Furthermore, a decision of the French Competition Authority interrupts the limitation period applicable to the class action for a period of five years from the date of that decision.
​
In addition, we consider that the rules governing the evolution of compensation procedures in competition law apply to class actions, insofar as they are compatible. This is notably the case with the regime introduced by Ordinance and Decree of march, 9th, 2017 (ord. n° 2017-303, march, 9th, 2017. – D. n° 2017-305, march, 9th, 2017), transposing Directive 2014/104/EU of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (the Antitrust Damages Directive).
​
This regime applies to damages actions relating to cartels, abuses of dominant position, agreements concerning exclusive import rights in overseas territories, agreements and practices in the transport sector, as well as predatory pricing practices. Its scope of application is broader than that of the Directive itself, as the French legislature sought to ensure equal treatment of victims of competition law infringements (S. Carval, Les actions en dommages-intérêts des victimes de pratiques anticoncurrentielles : JCP G 2017, n° 12).
​
Regarding the applicability of substantive rules (competition-based liability, the notion of undertaking) and evidentiary rules (presumption of harm, presumption of non-passing-on of overcharges, procedural rules relating to disclosure and production of evidence) to class actions, see M. J. Azar-Baud, fascicule Actions de groupe, JurisClasseur, LexisNexis, 2021.​
On the Number of Class Actions: Register
​
Further Reading:
​
-
J. Azar-Baud et Fabienne Jault, Collective redress in Competition law : European and private international law approach, in Private Enforcement of Competition Law in Europe. Directive 2014/104/EU and Beyond. Larcier, 1re édition 2021., p. 87 à 100.
​