On May 9, 2023, the Conseil d’Etat clarified how the start date of the limitation period applicable to a public entity claiming damages for anticompetitive practices should be determined in a case where the management bodies of that public entity took part in such practices, confirming that the follow-on actions brought by the Île-de-France region following an illegal market sharing agreement was not time-barred. [1]  The Conseil d’Etat held that in the event that the damage suffered by the public entity resulted from practices in which its governing bodies participated, the limitation period could only run from the date on which new governing bodies, not involved in the anticompetitive practices, had acquired sufficient certainty as to the extent of these practices.


The Île-de-France region launched a high school construction and renovation program and entered into 241 public contracts between 1988 and 1997, including 101 contracts with construction companies, at a total cost of 23.3 billion francs (more than 3.5 billion euros). 

On May 9, 2007, the Conseil de la Concurrence imposed financial penalties on 14 companies in the construction sector that had participated in a general and continuous agreement to share 88 public contracts for a total of ten billion French francs between 1989 and 1996.[2]  In parallel, criminal proceedings were brought against a number of individuals.[3]

On March 28, 2017, the Île-de-France region brought a follow-on damage claim before the Paris Administrative Court after the Tribunal des Conflits ruled that administrative courts had jurisdiction.[4]  The region sought compensation for the material loss it had suffered because the illegal agreement prevented it from obtaining fair market prices.

The Paris Administrative Court dismissed this claim on July 29, 2019, considering that the region had already sufficient knowledge of the extent of the practices to which it had been exposed in 1996, as evidenced by materials in which members of the regional Council informed the Procureur de la République (Public Prosecutor) of irregularities likely to be subject to criminal law, and therefore that its action was time-barred because the ten-year limitation period had elapsed in 2006.[5]

However, on appeal, the Paris Administrative Court of Appeals found that the evidence available to the region in 1996 was merely sufficient to raise suspicions of favoritism, but not to provide certainty as to extent of the anticompetitive practices perpetrated against it by the construction contract holders.  The Paris Administrative Court of Appeals held that it was only on the date of the Conseil de la Concurrence’s decision of May 9, 2007 that the region knew with sufficient certainty the extent of the anticompetitive practices perpetrated against it by its contractors.  As a result, the Paris Administrative Court of Appeals considered that the region’s action was not time-barred when it lodged its claim with the Paris Administrative Court on March 28, 2017, especially as the action brought by the region before the Judicial Court of Paris in February 2010 had interrupted the limitation period until the Tribunal des conflits’ decision of November 16, 2015.[6]

The construction companies and the Île-de-France region appealed this decision before the Conseil d’Etat.

The French Conseil d’Etat’s ruling

The Conseil d’Etat confirmed the analysis of the Administrative Court of Appeals regarding the limitation period for the region’s action.  It clarified that when the governing bodies of a public entity have participated in the anticompetitive practices of which it has been the victim, and this involvement has made it impossible for the public entity in question to assert its rights to compensation, the limitation period can only begin when its new governing bodies, which are not involved in the practices, have acquired sufficient knowledge of the extent of these anticompetitive practices.  In this case, the extent of the practices was not known by the new governing bodies before the Conseil de la concurrence’s decision of May 2007, the ten-year limitation period for the region’s civil liability action had not expired when it brought the case before the Judicial Court of Paris in 2010.

As regards liability, the Conseil d’Etat confirmed that the breaches of the public entities involved justified to absolve the companies of one-third of their liability towards the region. Therefore, the appeals were dismissed.

[1]  Conseil d’Etat, May 9, 2023, No. 451710 and No. 451817, available at: https://www.conseil etat.fr/fr/arianeweb/CE/decision/2023-05-09/451710 and https://www.conseil-etat.fr/fr/arianeweb/CE/decision/2023-05-09/451817.

[2]  Conseil de la concurrence Decision No. 07-D-15 of May 9, 2007 on practices implemented in the public markets relative to Île-de-France secondary schools.  This decision was confirmed on appeal (except with regard to the liability of one company, Campenon Bernard), see Paris Court of Appeals, July 3, 2008, No. 2007/10671.  The appeal to the Supreme Court was subsequently dismissed, see Supreme Court, October 13, 2009, No. 08-18.224.

[3]  Several employees of construction companies as well as a number of elected officials (including the president of the Île-de-France regional Council) and members of the region’s personnel were found guilty by the Criminal Tribunal of engaging in an anticompetitive agreement to award these contracts.  See Criminal Court of Paris, October 26, 2005, No. P9631169017.  This judgment was upheld by the Paris Court of Appeals, February 27, 2007, No. 06/00406. 

[4]  Tribunal des conflits, November 16, 2015, No. C4035.

[5]  See, for example, Paris Administrative Court, July 29, 2019, No. 1705349 and 1711026.

[6]  Paris Administrative Court of Appeals, February 19, 2021, No. 19PA03200 and No. 19PA03201.