Private Enforcement

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.

Cleary Gottlieb senior attorney Philipp Kirst contributed the chapter “The application ratione temporis of the Directive’s provisions and conflicting limitation periods under national laws” to the Research Handbook on Private Enforcement of Competition Law in the EU, published by Edward Elgar Publishing.

On March 1, 2023, the French Cour de Cassation (i.e., the French Civil Supreme Court) upheld the Paris Court of Appeals’ (“Court of Appeals”) judgment awarding Digicel €180 million in damages for harm suffered as a result of anticompetitive practices implemented by Orange from 2000 to 2006 in the mobile telephony sector in the French West Indies and Guyana.  However, the Cour de Cassation quashed the Court of Appeals’ finding that interest on the damage award should run from April 1, 2003, given that the harm inflicted to Digicel had not fully materialized at that date.

On August 30, 2022, the Federal Cartel Office (“FCO”) published its Annual Report 2021/2022.[1]  Andreas Mundt, the President of the FCO, pointed out two areas of the FCO’s focus: First,  the collusion of undertakings under the guise of inflation and Russia’s war against Ukraine.  Second, to use the flexibility of antitrust law to allow for a degree of cooperation that is necessary in times of crisis.  Moreover, the FCO continues to pursue its digital agenda for the digital economy and the protection of consumer rights. 

Last year we noted that U.S. antitrust enforcement was in a period of nearly unprecedented public attention and policy debate, and also that the Biden Administration seemed likely to launch significant new policy initiatives as the year progressed. …

On December 7, 2022, the French Supreme Court (“Cour de cassation”) upheld the Paris Court of Appeal’s judgment dismissing Concurrence’s damage claim brought against Samsung Electronics France (“Samsung”).[1] Concurrence claimed that Samsung had abruptly terminated their long- standing commercial relationship.

In the third episode of a three-part series on U.S. antitrust enforcement, host Nick Levy interviews Cleary Gottlieb colleagues Bruce Hoffman and Leah Brannon about the U.S. enforcement environment for Big Tech, the agencies’ application of Section 2 of the Sherman Act, and the prospects for legislative change.

On December 6, 2022, the Frankfurt am Main Court of Appeal[1] dismissed an action to declare the existence of contribution claims against other cartel members.  The action was filed in an attempt to suspend the limitation periods of upfront contribution claims that arose at the moment when the purchasers of the cartel suffered harm.  

On November 29, 2022, the German Federal Court of Justice (“FCJ”) overturned[1] a decision by the Frankfurt am Main Court of Appeal dismissing a damages action by the insolvent drugstore chain Schlecker.[2]  The FCJ held that, in the case of an anticompetitive exchange of price-related information, there is a factual presumption of causal damage.  The matter has been sent back to the Frankfurt am Main Court of Appeal for a new decision because, in the opinion of the FCJ, it had attached too light weight to a factual presumption.