In 2008, a subsidiary of Engie complained to the French Competition Council of anticompetitive practices implemented by EDF, EDF ENR and EDF ENR Solaire in the sector of photovoltaic electricity production services by individuals, practices which were successively established by the Competition Authority (see: French Competition Authority, 8 April 2009, LawLex091334, injunctions issued against EDF to cease practices capable of being abusive; 17 Dec. 2013, LawLex141900, EUR 13.8 million fine imposed for said practices ), the Paris Court of Appeal (CA Paris, 21 May 2015, LawLex15657) and the Court of Cassation (27 Sept. 2017, LawLex171587). On the basis of those decisions, ten undertakings in the sector sued the incumbent operator and its subsidiaries in the Paris Commercial Court for harm suffered as a result of the anticompetitive practices implemented, but the court declared the action to be time barred. The undertaking appealed.
The appellants argued that the court wrongly set the starting point for the five-year limitation period at the date of the imposition of interim measures. In the alternative, they contended that even with that date as the starting point, the action would not be time-barred. The Court of Appeal of Paris upheld that argument: the decisions granting interim measures were temporary and only establish that a practice “is capable of” infringing competition law; they were essentially aimed at urgently halting breaches of competition law not at sanctioning a de facto legally established practice – the court had ordered the investigation of certain grievances which were ultimately not established in the ruling on the merits. In other words, as decisions granting interim measures are less detailed in their reasoning and therefore able to be called into question on the merits, they cannot constitute the basis of knowledge of the practices by the victims such as to allow them to sue for damages.
Accordingly, the limitation period for the appellants’ claim for damages runs from the Competition Authority’s decision on the merits and not from the granting of interim measures on 8 April 2009. However, even if that date had been held to constitute the starting point of the limitation period, the damages claim for at issue, brought on 11 December 2014, would not have been out of time. Due to the immediate application of the Hamon law, which provides that the initiation of proceedings by the Competition Authority interrupts the limitation period, the period would have ceased to run from the initiation of the proceedings until the decision rendered on 17 December 2013 and then the appeal against that decision up to the final judgment of the Paris Court of Appeal of 21 May 2015. The appellants sought compensation, on the merits, for the period 2009 to 2014, for the practices committed by EDF between 2007 and April 2009 which had been sanctioned by the Authority and had ended with the interim measures granted in April 2009. They argued that the practices continued in other forms (making use of the group’s reputation, disparagement, artificial maintenance of a loss-making activity). With regard to the finding of civil torts, the Court notes that the judgment of 21 May 2015 definitively established two abuses of dominant position by EDF which consisted in using material and intangible means as well as privileged information to favor its subsidiary, each constituting a civil tort (faute civile).
On the other hand, it dismissed the new practices alleged, in the absence of a finding of continuity between them and the abuses found. With regard to causality, the Court agreed that the exclusionary practices carried out by EDF and sanctioned by the Competition Authority for the period 2007 to April 2009, may have had medium-term structuring effects on the complainants, even after they ceased. However, a link between those abuses and any loss suffered by competitors after their cessation, “which requires a more complex level of evidence than the contemporary harm caused by the practices” is lacking in this case: the new practices alleged do not constitute an extension of the abuses sanctioned as no continuity was established for the compensation period sought from 2009 to 2014 and four of the appellants entered the photovoltaic market after the infringement period or at the end of it. In addition, the appellants, who have asserted that more than one year after the abusive conduct had ceased, they suffered a decrease in the conversion rate – namely the number of prospective clients contracting with them after consulting their offers – and claimed damages on the grounds of loss of future profits over a period of four years, even though the sector had been in an unprecedented period of crisis since 2010 that has jeopardized the profitability of all operators, did not provide evidence to showing how the practices sanctioned could have continued to influence prospects after they had ceased.