Court of Cassation, Commercial, Financial and Economic Chamber, ruling of 26 February 2025, appeal no. 23-18.599

In a ruling dated 26 February 2025, the commercial chamber of the Court of Cassation confirmed the strict requirement to prove damage resulting from an anti-competitive agreement before the entry into force of Article L481-7 of the Commercial Code.

Context of the dispute

Gaches Chimie, a company specialising in the distribution of chemical commodities in south-western France, sued Univar Solutions for compensation for the damage it claimed to have suffered as a result of an anti-competitive agreement implemented between 1998 and 2005. This cartel, sanctioned by the Competition Authority in its decision no. 13-D-12 of 28 May 2013, involved several companies in the sector that had coordinated their prices and divided up their customer bases.

Gaches Chimie argued that this cartel had indirectly affected its business, in particular by enabling Univar Solutions and other members of the cartel to strengthen their position and engage in unfair competition to its detriment.

Decision of the Paris Court of Appeal

In a judgement dated 17 May 2023, the Paris Court of Appeal rejected the application of Gaches Chimie, considering that the latter did not demonstrate a direct link between the cartel and the alleged losses. It noted that the Competition Authority had excluded the south-west from the scope of the cartel, that the chemical commodities markets are regional and that the arguments put forward by Gaches Chimie, particularly with regard to changes in market share and operating results, were not sufficiently substantiated.

Position of the Court of Cassation

The Court of Cassation confirmed this decision and reiterated that the characterisation of an anti-competitive practice is not sufficient to establish harm to a competitor. The party claiming such harm must provide proof thereof, except where the rebuttable presumption provided for in Article L. 481-7 of the Commercial Code, which came into force after the period in question, applies.

« the purpose of anti-competitive practices law is to protect the free play of competition in the market and, therefore, the characterisation of such a practice does not necessarily imply that damage has been caused to operators active directly or indirectly in this market.

It can be inferred that, without prejudice to the rebuttable presumption provided for in Article L. 481-7 of the Commercial Code, which came into force on 11 March 2017, the party claiming that an anti-competitive practice has caused it harm must provide proof of this.’

The High Court agrees with the Court of Appeal’s analysis that Gaches Chimie has not demonstrated that the cartel, although it favoured Univar Solutions and its partners in other regions, had a direct economic impact on its business in the south-western region.

Scope of the judgement

This judgement illustrates the rigorous requirement for proof in matters of liability for anti-competitive practices. It confirms that the mere existence of a cartel sanctioned by the Competition Authority is not sufficient to justify a claim for compensation: the alleged victim must demonstrate the existence of a direct link between the illegal practice and the damage suffered.

Conclusion

The decision of the Court of Cassation reiterates the need for any company claiming competitive harm to provide evidence of the real effects of anti-competitive practices on its business.

It should be noted that proof of this harm is now easier because Article L481-7 of the Commercial Code now states:

‘It is presumed until proven otherwise that a cartel between competitors causes harm.’

Under this new text, in force since 2017, it may have been easier to provide evidence of damage, which would then have had to be challenged.

By Olivier Vibert, Lawyer

Kbestan