On February 20, 2020, the Paris Commercial Court dismissed the damages claim brought by various entities of Belgian retail group Louis Delhaize following the French Competition Authority’s 2015 sanction decision in the Dairy Products case.6The Court considered that the claimants’ economic assessment of their harm was insufficiently substantiated, whereas the defendants were able to successfully raise the passing-on defense.
In March 2015, the FCA imposed a €192.7 million fine (reduced to €132 million on appeal) on ten producers of dairy products for having engaged in anticompetitive exchanges of sensitive information and agreements on prices and volumes in the market for dairy products sold under private label between 2006 and 2012.
Two years later, in March 2017, two entities of the Belgian retail group Louis Delhaize, namely the hypermarket chain Cora and the supermarket chain Match (the “Claimants”), initiated an action for damages before the Paris Commercial Court (the “Court”) against the infringing companies.
The Claimants’ alleged loss and the dairy producers’ defense
The Claimants indicated that they had purchased €99 million worth of fresh dairy products sold under a private label over the affected time period (including €74 million from the defendants), and alleged that the practices had caused an overcharge of 5-10% as regards products sold by the defendants, and of approximately 2% as regards other products as a result of “umbrella pricing”, i.e., of non- infringing companies’ ability to set their resale prices higher than they would otherwise have been able to absent the infringement. Further, the Claimants asserted that although the infringement had ended in 2012, its “spillover” effects had lasted until December 2015, causing additional overcharges (albeit to a lesser extent) for four additional years. Finally, the Claimants alleged that they had only ever passed on a third of the overcharge to end customers. Consequently, they claimed to be entitled to compensation for both the harm directly caused by the anticompetitive practices and for the damage caused by their umbrella and spillover effects.
In reply, the defendants questioned the validity of the economic study submitted by the Claimants, noting in particular that (i) one of the control groups used to assess the overcharge was overly narrow, and (ii) the passing-on rate was likely much higher than 35%.
The Paris Commercial Court’s assessment
First, the Court recalled that since the practices at stake ended before the entry into force of the French law provisions implementing the EU Damages Directive (i.e., before March 2017), the pre-Damages Directive legal framework was applicable and, accordingly, it was up to the Claimants to demonstrate that they had not passed on the overcharge to their customers, in line with the Ajinomoto precedent. By contrast, had the EU Damages Directive been applicable, the defendants would have borne the burden of proving that the overcharge had been passed on.
Second, the Court assessed whether the economic study submitted by the Claimants effectively established the existence and amount of the damage they had allegedly suffered. While the Court took the view that the “differences in differences” method used in the study was valid, it criticized the choice of control groups, considering in particular that one of the two control groups constituted of an overly small sample of products. The Court also criticized the study’s choice of using different time periods for the affected products and the control group in their analysis. Consequently, the Court took into account the analysis submitted by one of the defendants, which showed that affected and unaffected products’ pricing did not vary in a significant manner, and concluded that the Claimants had failed to establish both the existence of the alleged damage and causation.
Third, according to the Court, the Claimants also failed to establish the passing-on rate which they had allegedly implemented. In this respect, the Court noted that (i) dairy products sold under a private label are entry-level products for which a consumer is unlikely to find a substitute, regardless of the retail price, (ii) most of the producers of dairy products sold under a private label had been involved in the practices, and (iii) although all of the main retail supermarket/hypermarket chains had been impacted, their market shares had remained stable over the infringement period. The Court concluded that the passing-on rate was likely close to 100% for all the impacted retailers.
The Paris Commercial Court dismissed the entirety of the follow-on damage claim. While the decision is likely to be appealed, it nevertheless illustrates the potentially key implications of the applicable legal framework, as well as the importance of submitting substantiated economic studies when seeking to establish the quantum of damages.
 See FCA Decision No. 15-D-03 of March 11, 2015 relating to practices implemented in the fresh dairy products sector.
 See Paris Court of Appeals ruling of May 23, 2017 (no. 15/08224).
 The Claimants respectively evaluated their pass-on rates to be 32.7% (Cora) and 35.4% (Match).
 French Supreme Court, ruling of May 15, 2012 no. 11-18.495.