Competition law lawyer in Paris: SMEs facing a cartel or abuse.

Yes. Section II of Article L. 462-5 of the Commercial Code allows companies to refer to the Authority any practice falling in particular under Articles L. 420-1, L. 420-2 and L. 420-5. An SME does not need to wait for an administrative investigation or for the intervention of the minister responsible for the economy, who has their own right of referral.

The referral must nonetheless pass several filters. Article L. 462-8 allows the Authority to declare it inadmissible if its author lacks standing or an interest in bringing proceedings, if the facts are time-barred or if they fall outside its jurisdiction. It also allows the Authority to reject it where the facts are not supported by sufficiently probative evidence or, for a referral by a company, where it does not regard them as a priority. Other grounds concern the handling of the same facts by the minister or by another competition authority.

The word "complaint" is in common use, but the act is a contentious referral. It describes the market, the position of the company concerned, the specific practice and its effects, and attaches the documents that establish them. The Authority does not compensate the SME for its loss. It may order the practice to stop, accept commitments or impose a financial penalty.

The firm first examines whether the facts really fall within the law on anticompetitive practices. A purely contractual dispute or a simple breakdown of a relationship is governed by other rules, and calls for a different strategy, before the commercial judge.

Rejection for insufficient evidence is a risk an SME should anticipate. The Authority may dismiss a referral whose documents do not sufficiently support the alleged facts (Article L. 462-8 of the Commercial Code). The file must therefore be substantiated before the Authority itself, preferably from the moment it is sent.

The Court of Cassation states that the Paris Court of Appeal, when seised of a challenge to that rejection, "must only verify whether the facts relied on, as submitted to the Authority, were supported by sufficiently probative evidence" (Cass. com., 25 September 2024, No. 23-13.067) (our translation). Material presented for the first time before the court may therefore not be taken into account.

The useful documents are concrete: contracts and general terms, successive price scales, emails of refusal or instructions, invoices, price comparisons, and turnover tables over several financial years. To these are added the material describing the market, such as the competitors present, the available market shares and the real alternatives.

The firm sorts these documents by alleged fact, so that each assertion in the referral points to a specific document. An isolated clue is still described as a clue in the referral, which preserves the credibility of the file as a whole.

It falls with the referral. Article R. 464-1 of the Commercial Code admits a request for interim measures only as an ancillary to a referral on the merits. The fate of the urgent request therefore depends entirely on the strength of the main complaint.

In a case heard by the Court of Cassation, the judgment records that, "considering that the facts relied on were not supported by sufficiently probative evidence, the Authority, on the basis of Article L. 462-8, paragraph 2, of the Commercial Code, rejected that referral and, as a consequence, the request for interim measures" (Cass. com., 15 May 2024, No. 22-23.616) (our translation). The Court there goes on to rule on the admissibility of an intervention in the appeal, but the facts show the sequence of events.

The Paris Court of Appeal ruled in the same way on a referral declared inadmissible. It holds that "the inadmissibility of the referral under Article L. 462-8 of the Commercial Code entails, as a consequence, that of the request for interim measures, without examination of the latter" (CA Paris, pôle 5 ch. 7, 16 January 2025, No. 22/17546) (our translation). The appeal was dismissed in its entirety, an outcome unfavourable to the party that made the referral.

For an SME, the lesson is practical. An urgent request attached to a fragile referral will not be examined, whatever the seriousness of the economic situation relied on. The firm therefore prepares the two documents together.

Article L. 464-1 of the Commercial Code authorises the Authority, in particular at the request of a company, to take interim measures. The text reserves them for practices that cause serious and immediate harm to the general economy, to the sector concerned, to the interest of consumers or to the complaining company. They remain limited to what the urgency requires.

The link between the practice and the harm must be established. In a recent decision, the Paris Court of Appeal recalls that "interim measures may be ordered only if the practice in question is the direct and certain cause of the serious and immediate harm at issue" (CA Paris, pôle 5 ch. 7, 29 October 2026, No. 26/12581) (our translation). It rejects the grounds directed against the injunctions issued against a social network operator.

Under the text, they may include suspension of the practice and an injunction to return to the previous state of affairs. In the case decided in 2026, the Authority had also ordered the operator to negotiate in good faith the remuneration of the press's neighbouring rights. These measures do not decide the merits, which are investigated afterwards.

The decision may be challenged within a short time limit: at most ten days after notification, before the Paris Court of Appeal, under Article L. 464-7. The SME must demonstrate urgency with its recent figures: a fall in orders, cash position, lost contracts, rather than a general concern.

Not necessarily. Article L. 420-2, paragraph 2, of the Commercial Code prohibits the abusive exploitation of the dependence of a customer or a supplier, where such conduct may disrupt competition or the structure of the market. A high share of turnover is an indication, not sufficient proof.

The Paris Court of Appeal requires "the existence of a situation of economic dependence of one undertaking on another, an abusive exploitation of that situation and a real or potential effect on the functioning or structure of competition" (CA Paris, pôle 5 ch. 4, 15 May 2024, No. 22/06672) (our translation). In that case, a production company made 95.5% of its turnover with a single broadcaster. The court notes that no clause prevented it from working with others and that it had not sought to diversify its outlets. It concludes that "It follows from the foregoing that the conditions of an abuse of economic dependence are not met".

This unfavourable decision shows the importance of proving alternatives. An SME must be able to show that it looked for other partners, that clauses or specific investments prevented it from using them, and that the situation does not result from a deliberate choice to concentrate its activity.

The firm also examines the abuse itself, such as a refusal to sell, discriminatory terms or a unilateral change in prices, as well as the possible effect on competition.

It may organise its network, but it may not abusively exploit its resellers' dependence. The Court of Cassation has recalled, in a case concerning specialised resellers of an electronics brand, that "the existence of such a state on the part of a supplier is assessed by taking into account the reputation of the supplier's brand, the importance of its share in the relevant market and in the reseller's turnover, and the reseller's inability to obtain, within a reasonable time, a technically and economically equivalent alternative to the contractual relations it has entered into with that supplier" (Cass. com., 13 May 2026, No. 22-22.623) (our translation).

In that case, the judgment of the court of appeal had noted a strong brand reputation and a share of its products of between 78 and 90% of the resellers' turnover, depending on the sources. It also found that there was no replacement supplier on comparable terms. The clauses limiting the display of competing products and the cost of converting the shop weighed in the same direction.

The Court of Cassation dismisses the appeals, which leaves in place the court of appeal's assessment on this point. The ruling is useful to an SME distributor, provided it gathers the same types of evidence: reputation, share of turnover, restrictive clauses, specific investments and the absence of an alternative within a reasonable time.

The firm reconstructs these elements from the contracts, the accounts and the approaches made to other suppliers.

Not in itself. The Court of Cassation holds that "Neither European nor national competition law prohibits the mere refusal, by the operator heading a qualitative selective distribution network, to approve distributors that meet the selection criteria" (Cass. com., 16 February 2022, No. 20-11.754) (our translation). A discriminatory application of the criteria, like the refusal itself, is prohibited by Article L. 420-1 of the Commercial Code only if its object or effect is to distort competition.

In that case, a garage owner who had applied for an approved repairer contract had not specified how the refusal distorted competition. The appeal to the Court of Cassation was dismissed, an outcome unfavourable to the rejected candidate.

To challenge a refusal, the SME must therefore show more than personal harm. It compares its file with that of approved distributors, identifies the criteria applied unequally and, in every case, establishes the anticompetitive object or effect of the refusal on the market.

The firm asks for the selection criteria, keeps the application and the supplier's reply, and looks for approvals granted to comparable companies. Without these elements, the action risks being rejected at the evidence stage.

An agreement or concerted action that limits other companies' access to the market falls within the practices prohibited by Article L. 420-1 of the Commercial Code. The text also covers the sharing of markets or sources of supply and obstruction of the setting of prices by the market.

The SME has two levers. The first is a referral to the Authority, possibly accompanied by interim measures if the exclusion threatens the company's survival. The second is an action for damages against the participants, before the specialised court.

As regards damages, Article L. 481-7 presumes that an agreement between competitors has caused harm, while leaving the perpetrator the possibility of proving the contrary. This presumption, which comes from the ordinance of 9 March 2017, does not apply to practices committed before its entry into force (CA Paris, pôle 5 ch. 4, 28 June 2023, No. 21/13172), and it never removes the need to quantify the loss.

The evidence is often indirect: coordinated refusals by suppliers or distributors, a sudden alignment of terms, messages passed on by customers. The firm assembles it in chronological order and distinguishes established facts from mere hypotheses before any step is taken.

No, but such a decision makes proof easier. Under Article L. 481-2 of the Commercial Code, where the Authority or the court ruling on a challenge has recognised the practice and attributed it to a company, by a decision that can no longer be challenged by ordinary appeal, that finding is binding on the civil court, and no proof to the contrary is possible.

The right to compensation also exists without a prior decision. The Court of Cassation states that "anyone is entitled to claim compensation for the harm suffered where there is a causal link between that harm and an agreement or practice prohibited by those articles" (Cass. com., 20 March 2024, No. 22-11.648) (our translation). The victim must then prove the practice itself, which makes the evidence heavier.

The Authority's acts have another effect. Under Article L. 462-7, any act aimed at the investigation, establishment or penalisation of the practices, carried out by the Authority, by another competition authority of the Union or by the European Commission, interrupts the limitation period before the Authority. The same text extends that interruption to the civil action.

Conversely, a rejection of a referral for insufficient evidence does not protect the perpetrator of the practice. In that case, the Court of Cassation holds, "no presumption, even a merely rebuttable one, arose from it", and the court seised had to examine the alleged abuse itself (Cass. com., 25 September 2024, No. 23-13.067) (our translation).

The firm therefore compares the cost and duration of the two routes. An SME may refer the matter to the Authority, wait for the decision and then claim damages on that basis, or bring the civil action directly where the evidence is already available.

Disputes relating to cartels and abuses are assigned to civil or commercial courts whose seat and territorial jurisdiction are set by decree of the Council of State (Article L. 420-7 of the Commercial Code). Article R. 420-3 refers to a table annexed to the Code, and Article R. 420-5 gives jurisdiction to the Paris Court of Appeal for appeals.

In 2018, the Court of Cassation held that "actions for compensation for harm arising from anticompetitive practices are brought before the specialised courts designated in Article R. 420-3 of the Commercial Code and that only the Paris Court of Appeal has the jurisdictional power to rule on appeals against the decisions of those courts" (Cass. com., 10 July 2018, No. 17-16.365) (our translation). It then penalised the error by a bar to proceedings (fin de non-recevoir) and declared inadmissible the appeal brought before another court of appeal.

The characterisation has since changed. For the neighbouring rule on restrictive practices, the Court of Cassation now holds that it "establishes a rule of exclusive subject-matter jurisdiction and not a bar to proceedings" (Cass. com., 29 January 2025, No. 23-15.842) (our translation). The Versailles Court of Appeal applied that reasoning to Articles L. 420-7 and R. 420-3, then referred the dispute to the Paris commercial court (CA Versailles, 24 October 2024, No. 23/07846).

It is therefore necessary to check, from the writ of summons onwards, that the court seised is among those designated, and never to bring the appeal before the court of the usual territorial jurisdiction. Article L. 420-7 also covers disputes in which these rules are merely invoked, such as the counterclaim heard at Versailles.

The firm checks this point before any writ of summons, because an error of court, treated as inadmissibility or lack of jurisdiction, delays examination of the merits.

Article L. 481-3 of the Commercial Code lists the heads of loss that can be compensated: the loss incurred, in particular the overcharge paid or the reduction in the price received, the lost profit, the lost chance and non-material harm. Economic losses are quantified from the company's accounts, and each head, including non-material harm, is supported by documents suited to its nature.

For the buyer, Article L. 481-4 lays down a favourable rule: the buyer is presumed to have borne the overcharge, and it is for the perpetrator to show that it was passed on further down the chain. This rule protects the SME that resells the products it bought at too high a price, but only for practices committed after the ordinance of 9 March 2017 came into force.

For a cartel on floor coverings committed from 2001 to 2011, the Paris Court of Appeal set aside these presumptions and required the buyers to prove their loss. It nonetheless reversed the judgment, found fault on the part of the penalised company and ordered a court-appointed expert assessment to quantify the loss (CA Paris, pôle 5 ch. 4, 28 June 2023, No. 21/13172). It also held admissible the alternative claim based on the lost chance of obtaining better prices.

The firm prepares this quantification with the invoices for the period, the margins, the prices charged before and after the practice and, if necessary, the opinion of an economist or chartered accountant.

The SME often holds only part of the evidence. Article L. 483-1 of the Commercial Code governs requests for disclosure of documents made by a victim who makes plausible the harm suffered as a result of an anticompetitive practice.

The judge then assesses the usefulness of the documents requested and the legitimate interests of the parties and of third parties. The judge reconciles the right to compensation with the protection of confidentiality and the effectiveness of the competition authorities' action.

Before any proceedings, Article 145 of the Code of Civil Procedure also allows a preliminary investigative measure to be obtained where there is a legitimate reason to preserve or establish the evidence of facts on which the outcome of a dispute depends. The application is made by petition or in urgent proceedings (référé).

The firm targets precise categories of documents: internal tariffs, commercial instructions, exchanges with competitors or distributors. An overly broad request is more easily refused, and a precise request is easier to defend before the judge.

Before the court, an action for damages is subject to a five-year limitation period (Article L. 482-1 of the Commercial Code). The period starts when the company knew, or should have known, both the facts and their anticompetitive nature, the existence of its loss and the identity of one of the perpetrators.

The limitation period does not run while the practice has not ceased. An SME suffering from a cartel that is still active is therefore not yet caught by the time limit, but it is in its interest to build its file without delay.

Before the Authority, Article L. 462-7 bars a referral for facts more than five years old where no act aimed at their investigation, establishment or penalisation has taken place.

Challenges to the Authority's decisions are subject to much shorter time limits, which run from notification. The challenge must be brought within one month before the Paris Court of Appeal against a rejection of a referral or a penalty (Article L. 464-8). That time limit falls to ten days for a decision on interim measures (Article L. 464-7).

The question often arises where the practice is old and the business concerned has been sold or restructured. The SME must direct its action against the entity that is liable for it, failing which its claim will be dismissed.

The Court of Cassation states that "anyone is entitled to claim compensation for the harm suffered where there is a causal link between that harm and an agreement or practice prohibited by those articles" (Cass. com., 20 March 2024, No. 22-11.648) (our translation). It holds that the determination of the entity required to pay compensation is governed by the principles of European Union law. The legal entity that ran the business at the time of the abuse is liable where it continues to exist legally, even after the transfer of some assets.

The judgment of the court of appeal, which had ruled out the liability of the transferring company, is set aside. The ruling benefits the victim, who may target the perpetrator of the practice rather than the acquirer of the business.

The firm therefore checks the history of the companies concerned: transfers, mergers, subsidiaries and parent companies. Article L. 481-1 of the Commercial Code makes liable for the harm any natural or legal person forming an undertaking that committed the practice.