Actions on a joint basis are frequently brought

Since December 31, 2005, a decree expected for four years, only date are competent to hear disputes introduced on the basis of a violation of national or Community rules of competition some (GIT) courts and courts of commerce (TC).

It's the git and TC of seven Springs Metropolitan Paris, Lyon, Marseille, Nancy, Rennes, Bordeaux and Lille and the jurisdiction of Fort-de-France, the appeals of their decisions being centralised by the Court of appeal of Paris.

Such specialization of the courts authorised to apply the rules of competition appears as the corrélaire necessary to the reform of the Community competition law by Regulation EC No 1/2003 of 16 December 2002 (1). In making the authorities and national courts fully competent to grant or remove exemptions to these rules, the regulations called share control of a complex weave of economy law, and there were fears that all jurisdictions do fail quickly.

Similarly, procedures allowing the courts to consult for opinion of the competition Council or to disclose records by the latter were probably not considered as sufficient.

Prolongation of the proceedings

Of course, this specialization of the courts is perhaps necessary, at least for an intermediate phase, to enter the particular culture of the right of competition in the common law jurisdictions, to expand the invocation of these rules by victims of anti-competitive practices and for the decisions of quality. So, it is not certain that has been properly assessed the price that will have in return pay individuals in terms of procedural uncertainty, both are notable questions left unanswered by the Decree.

First of all, the border between the rules of the "great" competition (articles l. 420 - 1 to l. 420 - 7 of the Code of commerce, and articles 81 and 82 of the EC Treaty) and the texts relating to the balance of trade and unfair competition is sometimes tenuous. Actions on a joint basis are frequently brought. The concern for rapid action and proximity might encourage many companies to exclude the action on the basis of the competition rules, which, paradoxically, would be counterproductive.

Then, and especially, the Decree does not solution to a problem yet identified for a long time: the fate of the introduced actions to other jurisdictions and in which a portion will invoke counterclaim a ban or an exemption based on the rules of competition. Result it the divestment of the judge or the obligation for him to stay the proceedings time of ruling authority jurisdiction

Either of these consequences seem inevitable, except to deprive the reform of substance. But then time necessarily attached to these complications can fear a proliferation of delaying actions on the initiative of the defendants, and a prolongation of the proceedings, placing the judge unable to reconcile the right time and the business.

Finally the order remains silent as to the competent courts to rule on applications for damages formed after the competition Council issued a decision finding a breach of competition rules.

Relief

The debate is therefore open: some believe that once the anti-competitive practice is established by the Council, any court may draw the civil consequences in assessing the damage and the causal link; others think that the judges are not bound by the decisions of the Council, they must again make the finding of fault, and so that only the courts selected are competent.

In conclusion, it is permissible to question about why the regulatory authority has not benefited from a pregnant very long to specify in the order the interpretation to be given to article l 420 - 7 of the Code of commerce when it targets the litigation in which the provisions of the "big" competition law are "cited". The challenge, however, is size: allow victims of anti-competitive practices to sanction and, at the same time, to obtain the full repair.