Significant imbalance: details of the Minister's action
The Paris Court of Appeal reaffirms the civil tort nature of the Minister's action under domestic law.
The Paris Court of Appeal reaffirms the civil tort nature of the Minister’s action under domestic law.
Google had been convicted at first instance in the Google Play case (T. com. Paris, 28 March 2022, No. 2018017655). This judgment was reformed by the Paris Court of Appeal in a decision of 23 October 2024 (CA Paris, 23 Oct. 2024, No. 22/15754).
On the one hand, it considers that it can be demanding for the proof to be provided by the Minister because he has extensive powers to provide this proof.
However, for the court, “Because of the nature of his action, subject to the criminal aspect of Article 6 of the ECHR, and the sanction sought as well as the exorbitant powers he exercises, the Minister in charge of the economy is not placed in the same situation as private victims for whom proof of submission may be more difficult to report” (§ 108). Therefore, if the evidence can be lightened for private victims, “this is not the case for (the minister) who has extensive means to positively prove his assertions”.
It is very interesting to note for the application of domestic law that the Minister is not a party like the others, and that he has exorbitant powers.
On the other hand, the Minister must prove the submission individually when the situation of the operators is heterogeneous.
The Court of Cassation in the Pizza Sprint case (Cass. com., 28 Feb. 2024, No.22-10.314: JurisData No.2024-002247) had admitted a global analysis because the situation of the franchisees in this case was homogeneous. Here the developers are very heterogeneous and the Court shows that Google Play is not essential for all, since Epic Games was able to choose to bypass it “to directly distribute its Fortnite game”, from which it deduces that “some publishers, probably rare (…) have real countervailing power” (§ 115).
In other words, even if “the Google group is a major player in this market and endowed with exceptional economic power” (§ 113), some can do without Google Play. Google Play is therefore not essential for all developers.
Thirdly, for the Paris Court of Appeal, the Minister’s action is always a civil action in international disputes.
The Paris Court of Appeal notes: “Intended to recognize, stop and sanction practices involving” the responsibility of [their] author [by forcing him] to repair the damage “that they cause, it is introduced by a third party to the commercial relationship and the contract that is the support here before the same courts as the action of the direct victims […]. It is thus, in domestic law, of a tortious civil nature […] and is subject to the rules of the Code of Civil Procedure, regardless of the classification used for the purposes of the interpretation of an inapplicable European regulation.
In our opinion, the qualification of civil action is erroneous; the Minister acts under the prerogatives of public authority. His action cannot be civil! But, no doubt, the Paris Court of Appeal wants to leave it to the Court of Cassation to decide whether there is a need to change the case law.
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Are you subject to a control by the DGCCRF, a subpoena based on the criminalization of a restrictive practice of competition?
GOUACHE Avocats assists you in the context of these controls or litigation (subject to a significant imbalance, obtaining an advantage without compensation, sudden termination of established commercial relations, prohibition of off-grid resale, imposed prices, etc.).
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