One of the essential goals of antitrust law is the protecttion of certain private interests: the interests of consumers in general, the interests of particular customers, but also - in a more controversial way - the interests of competitors. The most natural way - one could think - to ensure this protection would be to let the companies concerned defend themselves before the relevant courts or relevant competition authorities. This attitude, which is quite common in the United States, did not develop so much in Europe, in particular with regard to private enforcement before courts (as opposed to competition authorities).

A company, customer or competitor of the author of anti-competitive practices (i.e. restrictive agreements or abuses of a dominant position), can choose between several possible actions, and in particular:

1. Filing a complaint with a relevant competition authority

"Competition authority" in this context stands for the French Competition Council (Conseil de la concurrence) and/or the European Commission (the latter having jurisdiction with respect to articles 81 and 82 of the Treaty of Rome, which prohibit restrictive agreements and abuses of a dominant position under European Community law). These authorities, which have their own powers of inquiry, can sanction companies for anti-competitive behavior by imposing fines and/or by ordering them to discontinue such behavior. However, they cannot not grant damages to the victims of anti-competitive practices (only the courts can do this).

2. Bringing an action before the courts

The courts primarily concerned with such an action in France would be the commercial courts (Tribunaux de commerce). They can rule on requests aiming at (i) obtaining damages, (ii) the cancellation of contractual provisions which infringe competition law, and/or (iii) an injunction to discontinue the disputed practices (for example within the framework of a summary procedure). However, the burden of proof rests mainly on the victim of the anti-competitive practices (as opposed, to a certain extent, to the procedure before competition authorities).

3. Criminal proceedings

This way is very seldom used. Although the possibility is provided for by the law, criminal proceedings with respect to French competition law are still relatively theoretical (we are informed of only one decision of the Supreme Court, which relates to serious anti-competitive practices, implying acts of corruption within the framework of public procurement). Criminal proceedings could be used in the hope of obtaining evidence more easily, thanks to the significant powers of inquiry of the examining magistrate.

4. Simplified comparative study

The various actions described above can and should be adapted according to each particular matter at stake, given that all of them have advantages and disadvantages.

Filing a complaint before a competition authority - or before the French administration (DGCCRF) in hope that it will seize the French competition authority - is undoubtedly the means of action which is most frequently selected by victims of anti-competitive behavior. It has the advantage (or sometimes the disadvantage) of being addressed to an entity specialized in competition law, which has significant powers of inquiry and is able to handle complex businesses matters or matters where the anti-competitive conduct is difficult to evidence. Bringing an action before the commercial courts; on the other hand,  has the advantage of allowing the granting of damages and can possibly benefit from the "sensitivity" of certain judges with respect to certain questions which are taken into account to a lesser extent by the competition authorities.

Finally, a combination of the various actions described above is usually possible. For example, the victim of an anti-competitive practice may first try to trigger an investigation by the French administration (DGCCRF). It may then bring an action before a relevant court and ask such court to request the DGCCRF’s investigation report from the French administration (the commercial court of Versailles did this in a recent matter). Also, the decision of a competition authority may be used as the basis of a request for damages before a commercial court. Lastly, any court seized of a matter which triggers questions of competition law can decide to ask the Competition Council for an opinion, if it considers this to be necessary.

The solutions available to victims of anti-competing practices are numerous and it is certainly advisable to consider the advantages and disadvantages of one or the other possible way with respect to each particular case. Actions before the French courts with respect to anti-competitive agreements and abuses of a dominant position could become increasingly important in the future, this way having already proven effective in recent years as concerns certain practices in the distribution sector (price discrimination, abusive canceling of contracts, etc. Cf. article L.442-6 of the French commercial code).

(July 2001)

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