To quote this paper: E. SAID, “Clarification of the causal link requirement in antitrust damages: the Gaches Chimie ruling of 26 February 2025.”, Competition Forum, 2025, n° 0074 https://competition-forum.com.

The company Gaches Chimie, a firm specialized in the distribution of chemical commodities in the southwest of France, brought an action against Univar Solutions seeking compensation for the damage it claimed to have suffered as a result of an anti-competitive agreement that took place between 1998 and 2005 in the chemical commodities distribution sector.

The French Competition Authority, in its Decision No. 13-D-12 of May 28, 2013, had sanctioned this cartel on the grounds that it involved customer allocation and price coordination practices.[1] In that decision, the Competition Authority observed that certain geographical areas, notably the Île-de-France region and the southwest, had escaped the scope of the anti-competitive practices.
However, Gaches Chimie argued that, although its area, the southwest, had not been directly targeted, it nevertheless suffered harm due to the competitive advantage gained by the companies participating in the cartel, which allegedly affected its competitiveness.

The Paris Court of Appeal, in a judgment delivered on May 17, 2023, dismissed Gaches Chimie’s claim for damages on the grounds that the company had failed to demonstrate a direct causal link between the sanctioned practices and its commercial activity within its catchment area.[2] The company therefore lodged an appeal before the Cour de cassation, Commercial Chamber, which delivered the judgment of February 26, 2025, No. 23-18.599.

The legal issue submitted to the Cour de cassation was whether, in the presence of a sanctioned anti-competitive practice, the mere existence of such an infringement is sufficient to give rise to a right to compensation for a competitor, or whether the latter must also demonstrate actual damage, a causal link, and that its market area was affected by the cartel.

The Cour de cassation dismissed the appeal brought by Gaches Chimie, holding that “the establishment of an anti-competitive practice does not necessarily imply that harm has been caused to operators active, directly or indirectly, in that market”.

The High Court further recalled that, in the absence of the rebuttable presumption set out in Article L. 481-7 of the French Commercial Code[3] (applicable as from March 11, 2017), the party alleging that an anti-competitive practice has caused it harm bears the burden of proof in that respect.

The judgment of 26 February 2025 invites a two-fold reflection. First, it is necessary to analyse the legal scope of this decision through the lens of doctrine and theoretical debates regarding the interaction between public competition law and private compensatory liability (I). Secondly, the practical and prospective implications of this case law for the effectiveness of the European right to compensation and for the balance between legal certainty and victim protection must be examined (II).

 I. The Doctrinal Assertion of a Functional Duality: Competition Law and Compensatory Civil Liability

The judgment of 26 February 2025 is situated within a fundamental doctrinal debate regarding the nature and purposes of competition law. It is necessary, first, to analyse the conceptual distinction between the object of the law governing anticompetitive practices and that of civil liability, as established in case law and discussed by legal doctrine (A), and then to examine the resulting evidentiary regime and its legislative evolution in light of Directive 2014/104/EU (B).

A. The Dual Purpose of Competition Law: Market Protection versus Individual Compensation

The decision of the Cour de cassation of February 26, 2025, thus merely confirms this strict requirement of evidentiary rigor, applying it to a landmark case in the chemical distribution sector.

In the present case, the Court explicitly recalled that the purpose of the regime governing anti-competitive practices is the protection of the free play of competition, and not the automatic compensation of individual damages. The Court’s reasoning is clear: the Competition Authority, in its Decision 13-D-12 of May 28, 2013, had already noted that the sanctioned cartel concerned certain regional areas, notably Île-de-France and the Rhône-Alpes region, but did not directly affect the southwest region, where Gaches Chimie operated. Accordingly, the company could not claim “indirect” damages without demonstrating their economic reality.

Indeed, this position aligns with established doctrine, which recalls that, prior to the entry into force of the legal presumption under Article L. 481-7 of the French Commercial Code, the victim of a cartel was required to prove the wrongful conduct (the cartel), the damage, and the causal link (Article 1240 of the French Civil Code).[4] In the present case, the Court observed that the Competition Authority itself had noted that the southwest region had escaped the scope of the collusion.

The Court therefore rejected Gaches Chimie’s claim for compensation, emphasizing that it could not obtain redress without demonstrating that the cartel had affected its market area or had a concrete economic impact on its business activity. The judgment falls within a consistent line of case law clearly distinguishing the purpose of the law on anticompetitive practices from that of civil liability. As expressly stated by the Cour de cassation, “the purpose of the law governing anticompetitive practices is to protect the free functioning of competition on the market”[5], and not to automatically compensate individual losses.

This essential distinction echoes doctrinal analyses highlighting the dual purpose of competition law. On the one hand, competition law is a matter of economic public order: it seeks to protect the competitive process itself, as a collective asset, thereby ensuring market efficiency and consumer welfare. Sanctions imposed by the Autorité de la concurrence pursue objectives of general deterrence and market regulation, independent of any individual harm.

On the other hand, actions for damages based on Article 1240 of the Civil Code[6] fall within the scope of tortious civil liability: their purpose is the compensation of an individual and concrete harm suffered by an identified victim. As highlighted by Professor Muriel Chagny[7], the effectiveness of private enforcement of competition law depends on the rigorous demonstration of the classical triptych of civil liability: fault, harm, and causation.

This conceptual duality explains why, as recalled in the judgment of 26 February 2025, the establishment of an agreement does not automatically imply the existence of compensable harm. The Cour de cassation had already held, in its decision of 13 September 2017[8], that an anticompetitive practice “considered globally” on the market is not, in itself, necessarily a civil fault against a given operator. Likewise, in its decision of 19 October 2022[9], the Court held that the establishment of an illicit agreement does not necessarily imply that harm was caused.

Doctrinal analysis emphasises a fundamental principle: competitive harm is, in itself, lawful. In a market economy, losses of market share, reduced profits, or a competitor’s eviction normally result from competition. They become unlawful only when they stem from an illicit practice, such as an agreement or an abuse of dominance, and only then do they give rise to compensation.

This logic explains the Court’s refusal to admit any presumption of harm in the absence of an express legal provision. Before the entry into force of Article L. 481-7 in 2017, the claimant bore the burden of proving all elements of civil liability, including the harm suffered.

The judgment also rejects any attempt to requalify an anticompetitive agreement as an act of unfair competition. This distinction is crucial, as it prevents circumvention of the strict evidentiary rules applicable to anticompetitive practices.

Unfair competition, grounded in Article 1240 of the Civil Code, sanctions specific faults (disparagement, confusion, parasitism, disruption). It requires proof of a specific fault and a distinct harm. An agreement, in itself, is not an act of unfair competition. A separate fault must be demonstrated. In the present case, Gaches Chimie attempted to obtain compensation by alleging an indirect loss linked to a competitive advantage gained by cartel participants, without establishing any specific act of unfair competition.

Doctrine approves this distinction: the two regimes pursue different purposes and cannot be merged.

B. The Differentiated Evidentiary Regime Before and After the Transposition of the “Damages” Directive

The judgment recalls that, for facts predating 11 March 2017, the date on which Ordinance No. 2017-303[10] transposing Directive 2014/104/EU[11] entered into force, the general law of civil liability applies. Under Articles 1240 and 1353 of the Civil Code[12], the claimant must prove all elements of the claim: the fault (the agreement), the harm, and causation.

This solution stems from the principle of non-retroactivity of new legal provisions. The directive and the French transposition ordinance do not apply to earlier infringements. This ensures legal certainty.

In the present case, the agreement occurred between 1998 and 2005, well before the reform. Gaches Chimie therefore could not benefit from the presumption of harm in Article L. 481-7 and had to prove actual, quantifiable harm.

Doctrine stresses the need for economically motivated evidence of harm, requiring rigorous economic analysis capable of demonstrating causal impact.

This evidentiary requirement entails:

1- Territorialisation of harm: The judgment illustrates the importance of identifying the geographic market affected. The Autorité de la concurrence had expressly found that the southwest region, where Gaches Chimie operated, was not affected. Doctrinal analyses rely on the concept of zone de chalandise, defined as the geographic perimeter from which an operator draws most of its customers[13].

If the claimant’s geographic market was untouched, no compensable harm can be established.

2- Demonstration of a concrete economic impact: The victim must establish a measurable economic impact, often requiring econometric methods: price comparisons, market share analysis, counterfactual modelling. As doctrine notes, quantifying competition harm involves significant methodological challenges[14].

In this case, the Court of Appeal found the submitted evidence insufficient.

Directive 2014/104/EU profoundly altered the evidentiary regime by introducing Article L. 481-7, which establishes a rebuttable presumption[15] that agreements cause harm. This presumption applies solely to horizontal agreements[16].

It reverses the burden of proof: the defendant must prove the absence of harm. However, this presumption does not apply retroactively.

Thus, the judgment confirms a temporal dualism ; Before 2017: the victim must prove harm and after 2017: harm is presumed for horizontal agreements.

II. The Implications of the Judgment: Between the Effectiveness of the Right to Damages and the Balance of Interests at Stake

The judgment raises broader issues. Its practical consequences for victims and for the effectiveness of the European right to compensation must be analysed (A), followed by prospective implications for distribution and competition litigation (B).

A. Effectiveness of the Right to Compensation versus Legal Certainty: A Revealing Tension

The decision under consideration undoubtedly presents advantages in terms of legal certainty. By clarifying the evidentiary requirements governing actions for damages relating to agreements concluded prior to 2017, the Cour de cassation provides litigants with a clearer understanding of the conditions under which such actions may succeed.

This case law allows undertakings to ascertain the precise extent of their exposure to litigation risk. Economic operators now know that only concrete, contextualised, and quantified proof of harm may give rise to compensation. They are therefore able to anticipate more effectively the legal consequences of their practices and to assess the risks arising from damages claims.

According to scholarly commentary, this predictability of the law constitutes an important factor of economic stability. It prevents undertakings from being exposed to claims founded on hypothetical or speculative harm, which could otherwise disrupt market functioning.

However, the strict evidentiary demands imposed by the judgment of 26 February 2025 raise questions concerning the effectiveness of the right to compensation guaranteed under European Union law.

As several authors have noted, Directive 2014/104/EU is premised on the principle of effectiveness[17]: any person who has suffered harm as a result of an infringement of competition law must be able to obtain full compensation. The Court of Justice of the European Union has consistently reaffirmed that national procedural rules must not render the exercise of this right “practically impossible or excessively difficult.”[18]

Yet the requirement of rigorous, economically substantiated proof of harm may constitute a significant obstacle for certain victims. Small and medium-sized enterprises, as well as independent distributors, often lack both the financial resources and the economic expertise needed to establish a robust evidentiary record consistent with the demands of the courts.

Consequently, the strict standard adopted by the Cour de cassation may discourage a substantial number of potential claims, given the difficulty of quantifying and proving harm. This situation risks generating an asymmetry among victims: only undertakings with considerable resources may be able to bring viable actions, while the smallest operators are deterred by the cost and complexity of the evidence required.

The judgment illustrates a structural tension between two dimensions of competition law enforcement: Public enforcement, aimed at deterrence through sanctions imposed by competition authorities, regardless of individual harm; and private enforcement, aimed at compensating victims and contributing to overall deterrence through the threat of damages actions.

Although complementary, these mechanisms may conflict. A standard of proof that is too demanding weakens the effectiveness of private enforcement and diminishes the overall deterrent effect of competition law. Conversely, overly generous access to damages could destabilise markets and discourage innovation.

Doctrine generally advocates for a balanced approach. Directive 2014/104/EU reflects this search for equilibrium by facilitating damages actions (through presumptions, access to evidence, and harm estimation) while preserving the effectiveness of leniency programmes and excluding punitive damages.

The judgment also underscores the importance of territorial analysis in assessing competitive harm, particularly in distribution markets. As doctrine emphasises, such markets are often regionalised: competition unfolds within specific geographic zones corresponding to operators’ catchment areas.

In the present case, although the agreement was national in scope, the southwest region, where Gaches Chimie operated, had not been affected. As the Cour de cassation noted, this lack of territorial impact justified rejecting the damages claim.

The doctrine supports this approach, which reiterates that competitive harm must be territorialised: a claimant whose geographic market was not affected cannot obtain compensation.

B. Perspective and Implications for Competition Damages Litigation

The judgment of 26 February 2025 confirms that damages actions for anticompetitive practices require substantial economic expertise.

More specifically, potential victims must now assemble robust evidentiary files founded on rigorous econometric analyses. This generally requires retaining specialised economists capable of conducting market studies, comparative analyses, and counterfactual modelling.

While this requirement enhances the quality of judicial decisions and prevents unjustified awards, it nevertheless results in high litigation costs. Doctrine therefore highlights the need to facilitate SME access to economic expertise, notably through: litigation funding mechanisms, pooling of expert resources in collective actions, and simplified methodologies for smaller claims.

Given the financial and evidentiary difficulties faced by individual victims, scholars advocate for strengthened collective actions in competition matters. Although Directive 2014/104/EU encourages such mechanisms, it does not mandate them; in France, the action de groupe introduced by the 2014 Hamon Law[19] remains seldom used.

Collective actions offer several advantages: cost-sharing for expensive expert evidence; uniform treatment of claims arising from the same infringement and increased deterrence by enabling compensation of victims who would not litigate individually.

The judgment may thus indirectly encourage broader recourse to collective actions, which may be the only means to overcome financial and technical barriers.

In the distribution sector, undertakings are encouraged to anticipate competition litigation by systematically compiling competitive monitoring files, including: precise documentation of market conditions (prices, sales volumes, margins, market shares); preservation of detailed economic data to enable before-and-after comparisons; geographic market and catchment area studies and causal analyses isolating the specific effect of an agreement from exogenous factors (economic conditions, strategic choices, market developments).

This anticipatory evidentiary strategy, although costly, has become necessary in view of the Court’s stringent approach and may constitute an additional barrier to smaller operators seeking compensation.

Finally, the judgment has a limited temporal scope. Its solution applies only to agreements concluded before 11 March 2017, for which the presumption of harm in Article L. 481-7 does not apply.

For horizontal agreements concluded after 2017, the evidentiary regime is significantly different: the presumption shifts the burden onto the defendant. However, victims must still quantify the harm, meaning that economic analysis and territorial assessment remain essential for determining damages.

Elhad SAID

[1]  The French Competition Authority, « Décision 12-D-12 relative à des pratiques mises en œuvre dans le secteur de la commercialisation de commodités chimiques. », 28  May 2023.

[2]  Paris Court of Appeal , RG n° 21/01033, 17  May 2023

[3] Article L. 481-7 of the French Commercial Code: « A cartel between competitors is presumed, unless proven otherwise, to cause harm. »

[5] Cour de cassation, Civil Division, Commercial Chamber, 26 February 2025, No. 23-18.599, Paragraph 6 of the Court’s reasoning

[6] Article 1240 of the French Civil Code: « Any act of a person that causes damage to another obliges the person at fault to repair it. »

[7] Muriel CHAGNY & Bruno DEFFAINS, Réparation des dommages concurrentiels, Editions Dalloz, 2015

[8] Cour de cassation, Commercial, Financial and Economic Chamber, 13 September 2017, No. 15-22.320

[9] Cour de cassation, Civil Division, Commercial Chamber, 19 October 2022, No. 21-13.197

[10]  Ordinance No. 2017-303 of 9 March 2017 on actions for damages resulting from anti-competitive practices

[11] Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union, Text of EEA relevance

[12] Article 1353 of the French Civil Code: « The party claiming the performance of an obligation must prove it. Conversely, the party asserting that they have been released from the obligation must justify the payment or the act that resulted in the extinguishment of their obligation »

[13] Wikipedia, « Zone de chalandise », 4 avril 2025

[14] Johan POROK, la responsabilité civile sur les marchés financiers, LGDJ, 2019

[15] A presumption is said to be rebuttable when it may be overturned by any means of evidence, pursuant to Article 1354 of the French Civil Code.

[16] The French Competition Authority, Compétence contentieuse  : « A distinction is made between “horizontal” agreements, which involve several competing companies, and “vertical” agreements, concluded between operators at different levels of the economic chain, such as suppliers and distributors. »

[17] A principle requiring that the protection of the rights individuals derive from EU law must not be subject to conditions that would make the exercise of those rights practically impossible or excessively difficult

[18] Court judgment, Fifth Chamber, 6 October 2015, East Sussex County Council v. Information Commissioner, Case C-71/14

[19] Law No. 2014-344 of 17 March 2014 on Consumer Protection