On 23 February 2022, the Paris Court of Appeal handed down its judgment in the dispute between SAS 10 Médias and SAS L'Equipe, SA Les Editions P. Amaury and SAS Team Media (Paris, Division 5, Chamber 4, 23 February 2022, Case No. 19/19239).
The Court of Appeal dismissed the bulk of the appellant’s claims, 10 Médias, in particular those relating to the loss of opportunity alleged in respect of both the print newspaper and the website Le10sport.com, on the grounds of “the absence of a sufficiently serious prospect of achieving a positive annual margin”. In doing so, the Paris Court of Appeal partially set aside the judgment of 11 June 2019 handed down by the Paris Commercial Court (Case No. 2013004738), which had recognised a very limited loss of opportunity in relation to the print newspaper (a loss of opportunity factor of 4 per cent).
Thus, whilst the damages claimed by the appellant amounted to more than 52 million euros (loss of profit, loss of opportunity and non-pecuniary damage), the court ordered the respondents to pay less than 2 million euros (lost profits, loss of opportunity and non-pecuniary damage).
In its judgment, the Court of Appeal emphasised, in particular, the need to justify the discounting of damages relating to the unavailability of funds at a rate different from the statutory interest rate. The Court of Appeal thus held that, “in the absence of evidence of specific loss, loss of opportunity may be assessed by applying the statutory interest rate corresponding to a risk-free investment to the sum of which the aggrieved company was deprived”. Finally, the judgment also emphasised, with regard to claims for non-pecuniary damage, that “no presumption of damage may be accepted in cases concerning compensation for anti-competitive practices”.
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