On 24 November 2021, the Paris Court of Appeal handed down a judgement in the case of SAS Supermarchés MATCH, SAS CORA v SNC NOVANDIE, SNC LACTALIS NESTLE ULTRA FRAIS MDD et al (Ch 5-4, No. 20/04265).
Cora and Match had sought compensation for the loss they claimed to have suffered as a result of the practices identified in the Competition Authority’s decision of 11 March 2015 (15-D-03), which had sanctioned a cartel between various companies manufacturing dairy products, including the respondents in the case.
Cora and Match relied on an economic study to justify various additional costs incurred in their purchases, which they had clearly identified across the entire period in question (between September 2009 and December 2015). They also claimed ‘spillover’ damages, arguing that companies not party to the agreement had followed in the footsteps of the companies concerned by increasing their own prices (on this point, see the Koné case – 30 January 2014, CJEU C-557/12).
The Court acknowledges the existence of additional costs on the basis of the study provided by the claimants but then considers the possibility of these costs being passed on to the claimants’ customers (‘passing on’). Given the date of the case, the Court relies on the principles of ordinary law in force prior to the transposition of Directive 2014/104 and states that it is for the claimants to demonstrate that they did not pass on the additional costs they incurred. Although the respondents criticised the passing-on rates claimed by the claimants (between 32 and 35 per cent) on the basis of theoretical studies rather than data specific to the retailers concerned, the Court nevertheless accepted the passing-on rates calculated by the claimants.
It can be concluded from this case that the burden of proof regarding cost passing-on rests with the claimants, which in itself does not necessarily satisfy the principle of effectiveness, even though in practice the claimants’ argument, supported by economic studies, was upheld.
This judgment also recognises the existence of ‘umbrella damage’ for part of the period (up to 2012) outside the so-called ‘inertia period’.
An interesting point to note is the volume effect claimed by the claimants, who considered that they had suffered losses in volume due to price increases. This claim was not upheld by the Court, which considered, on the basis of the defendants’ arguments, that demand for these products is relatively inelastic with respect to price and that the losses in volume had not been demonstrated.
Finally, it should be noted that the interest rate applied by the Court to compensate for the financial loss resulting from the shortfall in cash flow corresponds to the marginal borrowing rates of the claimants, namely 2.79 per cent and 3.65 per cent , due to the increase in the claimants’ financing requirements as assessed by the Court.
Contributors: Maurice Nussenbaum and Claire Karsenti
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