On 24 August 2011, the Commercial Court in Paris ordered the French competition authority, the Autorité de la concurrence (Autorité), to disclose documents relating to the settlement of an antitrust investigation in the context of a private damages action. This order could significantly strengthen the position of claimants in damages actions in France and potentially in other EU Member States and adds another layer of complexity to cartel cases in the European Union. When agreeing to settle with the Autorité, companies must therefore now consider the potential risk of having to disclose documents in future actions.

Background

The claimant in the damages action, Ma Liste de Courses (MLDC), an online discount coupon processor, initially issued a complaint before the Autorité against two rival companies, HighCo and Sogec, for setting a standard for online coupons without consulting the other companies involved in the field, such as MLDC. The Autorité concluded the investigation on the back of commitments offered by HighCo and Sogec to remove competition concerns. This decision was not appealed. MLDC acknowledged that the commitments brought an end to the alleged anticompetitive behaviour but argued that the commitments did not repair the alleged harm it had suffered. MLDC subsequently introduced an action for damages against its two rival companies (Tribunal de commerce de Paris, 15th chamber, SAS Ma Liste de Courses v. Société HighCo 3.0, Société HighCo Data, Société Sogec Gestion, Société Sogec Marketing, decision of 24 August 2011).