The European Antitrust Review 2015 Section 4: Country chapters

France: Cartel Regulation

French cartel regulation is no longer based solely on sanctions but also on a dialogue that allows more pragmatism and weakens the structure of anti-competitive practices. The successful implementation of all the components of the French leniency programme has made the French competition authority more like a regulator.

A new, more powerful authority

Since 2 March 2009, the principal authority with responsibility for enforcement regarding cartels is the Competition Authority (the Authority). It replaced the former Competition Council (the Council) pursuant to the Law on the Modernisation of the Economy (LME) of 4 August 2008. The Authority is an independent administrative body responsible for the analysis and regulation of competition in the French market under the relevant provisions of French and EU competition law. Investigations of cases referred to the Authority are carried out by rapporteurs who, following a decision of the commercial chamber of the French Supreme Court in 1999 (regarding the Council but transposable to the Authority) do not participate in the deliberations of the Authority but merely report to the Authority in open session.1 This is to ensure full compliance with the requirements of article 6 of the European Convention of Human Rights.

By virtue of the LME, the Authority is endowed with more powers and extensive means. It has its own investigation services, the ability to go to court and the right to render, on its own initiative, opinions on competition-related issues. The investigation services are managed by a general rapporteur. The LME creates a hearing officer in charge of recording the parties’ comments on the proceedings.

Nonetheless, these changes should not put into question the main positions taken in the past by the Council in particular, as the Council’s former president heads the Authority.

Certain practices have been excluded from the scope of the Authority’s jurisdiction. The ordinance of 13 November 2008, which implements the LME, provides that the French minister of economy (the minister) is entitled to settle and order measures as regards practices that only affect local markets. The minister is in charge of such ‘micro anti-competitive practices’ if they do not come under articles 101 and 102 TFEU, and if the combined turnover in France of all the undertakings concerned does not exceed €100 million and the turnover of each of the undertakings in France does not exceed €50 million.

Substantive test

Since the entry into force of the New Economic Regulations Act (NRE),2 the French substantive test, contained in article L420-1 of the French Code de Commerce (article L420-1 and the Code), prohibits concerted practices, agreements and alliances, express or tacit, between undertakings that have as their object, or may have as their effect, the prevention, restriction or distortion of competition in a market, and in particular those that aim to:

  • limit access to, or competition from, other undertakings;
  • interfere with price setting by market forces by artificially favouring a rise or a fall;
  • limit or control production, markets, investment or technical development; or
  • share markets or sources of supply.

Anti-competitive practices committed directly or indirectly through the intermediary of a subsidiary situated outside the French territory are also expressly included within the scope of the prohibition.

The French competition authorities have traditionally considered that proof of a demonstrable effect on competition is not necessary where the object of an agreement is to restrict competition. This position of principle has generally been confirmed by French courts, although a ruling by the Paris Court of Appeal3 overturned a decision by the Council on the basis that it had not been established that the frequent exchanges of price information between service station operators had any real effect on the pricing behaviour of the major petrol suppliers (Total, Shell, Esso and BP) on which fines totalling €27 million had been imposed.

The Council found that repeat and frequent exchanges of sensitive price information had been taking place between motorway service station operators – that is, service stations had been exchanging information by telephone on the price charged for different types of fuel several times a week and had been transmitting that information to their respective head offices.

This information had allegedly been used to determine the prices charged by operators on French motorways that, in line with previous decisions by the European Commission, was identified as a separate market. As a result, prices had converged to a higher level than that which would have otherwise prevailed. The Council emphasised that these practices were particularly serious in the light of:

  • the oligopolistic nature of the market;
  • the fact that consumers of fuel on motorways are captive; and
  • the widespread nature of these practices, which had been carried out for some years, as admitted by service station managers when questioned.

The position of the Council on the object or effect criteria has been confirmed in two decisions in which the Council considered that the exchange of information involving trade secrets, in particular in an oligopolistic market, is in itself anti-competitive. These decisions were issued within a few days of each other respectively in the luxury hotel and wireless operator sectors.4 In these decisions, the Council stressed that sharing strategic information in an oligopoly artificially raises transparency among competitors and thus creates a collusive equilibrium distorting competition. In the luxury hotel case, the infringement only consisted of information exchange and the strategic information mainly included occupation rates, average prices per room and incomes relating to each available room.
In the wireless operator case, it mainly included information on the number of subscriptions and terminations as well as market shares. The Council pointed out that the information exchanged was confidential as the parties could not have had access to it in any other way and it was not shared with the customers. With respect to the exchange, a fine of €709,000 was imposed in the luxury hotel case and of €92 million in the wireless operator case. The Paris Court of Appeal upheld these two decisions.5 However, the French Supreme Court only partly upheld the wireless operator decision by stating that the previous decisions had failed to establish that the exchange of confidential information had either an anti-competitive object or an actual or potential anti-competitive effect, therefore underlining that the mere exchange of information is not anti-competitive per se.6 The ‘remand’ Court of Appeal therefore attempted to demonstrate the actual anti-competitive effects of the practices and decided to reject the appeal. This latter decision was again subject to appeal before the Supreme Court. The Supreme Court overturned the Paris Court of Appeal’s decision once more by considering this time that, although the anti-competitive effects were now sufficiently explained, the damage to the economy could not be presumed and that this too should be demonstrated. Recently, the Paris Court of Appeal upheld the fines imposed by the Council in its first decision and the Supreme Court upheld this position.7

Following this same approach, the Authority fined endive growers and their professional organisations in March 2012 approximately €4 million for price fixing through an exchange of sensitive information. In this case, undertakings used an IT information exchange tool in which each producer was obliged to report its prices in real time on a non-anonymous basis. Any producer who did not report a price in accordance with the price decided collectively was thus immediately identified and could be subject to reprisal measures. The practices at stake were considered to be even more serious because the parties were clearly aware that they were infringing competition rules. On many occasions, the head of the Directorate General of the French Ministry of Economy in charge of Competition, Consumer Protection and Fraud Repression (DGCCRF) had drawn their attention to the fact that the agricultural sector did not benefit from any exception under competition rules. In addition to the fine imposed, the Authority issued an injunction ordering the parties to modify the IT information exchange tool so that it only records past, anonymous and aggregated data.

However, the Court of Appeal of Paris ruled in a judgment of 15 May 2014 that the endive growers’ organisation did not exceed its legal mission consisting of price regulation. The Court also found that the practices were occasional and that they could not be considered as a single, complex and continuous infringement due to a lack of common anticompetitive objective.8

The effect of a practice on the market is taken into account by the de minimis rules that entered into force on 27 March 20049 and are largely modelled on the European Commission’s Notice on Agreements of Minor Importance. Under article L464-6-1, agreements or practices between actual or potential competitors (horizontal agreements) whose combined market share is less than 10 per cent, or between undertakings that are not actual or potential competitors (vertical agreements) whose respective market shares are less than 15 per cent, may be exempted from the application of article L420-1 on the grounds that they do not have an appreciable effect on competition.

However, where the parties’ arrangements contain certain hard-core infringements, the agreement or practice does not benefit from the above exemption. For horizontal agreements, such hard-core infringement comprises price fixing, limiting production or supply, and market or customer sharing.

A happy family? Group undertakings

It is generally considered that article L420-1 does not apply to intra-group arrangements where subsidiaries lack any real commercial autonomy. In this respect, mention should be made of a decision where the Council imposed fines totalling €4.3 million on subsidiaries of the Air Liquide Group (Air Liquide) for anti-competitive practices in the hospital medical gas sector.10 In that case, the Council found that two subsidiaries of Air Liquide had engaged in market-sharing and price-fixing agreements between 1994 to 1996 while bidding to become suppliers of medical gases to public hospitals and private health-care establishments.

The Council noted that it was not illegal for the subsidiaries of the same group to agree on a sole bidder. However, here the two subsidiaries of Air Liquide had submitted two separate bids during a call for tenders and had thereby, according to the Council, presented themselves as two independent and competing companies on the market. In such circumstances, it was illegal for the subsidiaries to coordinate the terms and price of their respective offers as this misled hospitals as to the real degree of competition for the tender. It made no difference that those who had organised the tenders knew of the corporate links existing between the bidders.

Similar decisions were rendered more recently by the Authority.11 In these decisions, the Council cited the Air Liquide decision as a precedent.

Penalties

The main penalties for breach of the prohibition contained in article L420-1 are fines of up to 10 per cent of worldwide turnover, or periodic penalty payments of up to 5 per cent of the daily average turnover for every day of delay in the implementation of either a decision of the Authority or an injunction imposed by the Authority, or both.12 Turnover to be taken into account for the calculation of fines will be the highest amount realised by the undertaking in any financial year during the period in which the practices took place. For the purposes of the French cartel rules, as with the penalties for breaches of article 101, the notion of undertaking extends to all group undertakings wherever situated. Article L464-2 of the Code was introduced by the NRE and has a significant effect on the penalties that may be imposed by the Authority. Under the previous regime, the maximum penalty that could be applied to undertakings was 5 per cent of turnover in France for the preceding year. As a result, the total fines imposed by the Council and then by the Authority has been as follows over the past 10 years:

  • 2001: €51.1 million;
  • 2002: €64.3 million;
  • 2003: €88.5 million;
  • 2004: €49.3 million;
  • 2005: €754.4 million;
  • 2006: €128.2 million;
  • 2007: €221 million;
  • 2008: €631.3 million;
  • 2009: €206.6 million;
  • 2010: €442.5 million;
  • 2011: €419.8 million; and
  • 2012: €540.4 million.

The 2008 figure includes the highest total fine imposed by the Council in the past 10 years, which occurred in a steel industry cartel case and amounted to €575 million. This fine exceeded the wireless operators’ record fine of €534 million imposed in 2005. It seems that the serious fines policy implemented by the Council made it a very attractive forum that resulted in a great increase in the number of complaints lodged before the Council in 2008. This trend has been maintained with the creation of the Authority. In 2012, the Authority issued 13 decisions for an amount totalling €540.4 million.

On 17 May 2011, the Authority published its final guidelines for setting antitrust fines defining, in particular, the basic amount of the penalty as a proportion of the value of the sales of the products or services to which the infringement relate.13 In a decision of 29 March 2012, the Paris Court of Appeal, anticipating the application of the guidelines, imposed on the Authority the obligation to apply this rule.14

Applying the guidelines, the Authority takes into consideration the situation of the sanctioned entity or undertaking or of the group to which the undertaking belongs. Thus, repeated infringements or financial difficulties can respectively lead to an increase15 or a reduction16 of the fine’s amount.

French law has largely followed the case law of the European Court of Justice with regard to the continuity of the undertaking and the fines that may be imposed. Accordingly, where a business is acquired, the acquirer shall be responsible for all anti-competitive practices undertaken by the newly acquired business, irrespective of whether or not the infringements occurred before or after the acquisition. An acquirer of the business of an undertaking may not therefore rely upon the fact that it could not have prevented the undertaking from engaging in cartel activity prior to its acquisition of control.

It is interesting to note that the sanctions that may be imposed by the French competition authorities extend not only to undertakings, but also to individuals engaged in economic activities where fines of up to €3 million may be imposed for breaches of article L420-1. This provision is designed to cover sole traders who engage in cartel-type behaviour.

In addition to the civil or administrative sanctions applied to individuals and to undertakings, individuals may be subject to criminal penalties amounting to fines of up to €75,000 and imprisonment for up to four years where they have ‘fraudulently taken a personal and decisive action in the conception, organisation or implementation of the practices covered by article L420-1’.17 These penalties are not imposed by the Authority, although the Authority itself will generally refer the matter to the public prosecutor for further investigation. While the criminal provisions are rarely involved, guidance on this application has been given in a decision of the Council requiring the public prosecutor to examine the possibility of bringing a criminal prosecution against the chairman of the Fédération départementale de la Boulangerie et Boulangerie Pâtisserie de la Marne (FDBP) – a bakeries trade association in the Marne region of France – as a result of his active and decisive role in the establishment and implementation of a cartel among members of the FDBP.18

In its decision, the Council noted that three elements must be proven in order to impose criminal charges:

  • personal participation: it is not sufficient for the purposes of the criminal offence that the accused is a director of the undertaking concerned. There must be an active and personal role on the part of the accused in the conception, planning and implementation of the cartel;
  • decisive participation: the behaviour of the accused must be shown to have been decisive and a causal link established in putting the anti-competitive behaviour into practice; and
  • fraudulent participation: the accused must have intentionally breached the relevant competition rules, which may be inferred as a result of a breach of other criminal practices, such as breach of trust, corruption, etc.

In this case, the Council considered that all three elements had been satisfied by the behaviour of the FDBP chairman and recommended bringing a criminal prosecution.

The FDBP chairman brought an action against the Council’s decision to refer the case to the public prosecutor. This allowed the Paris Court of Appeal to hold, for the first time, that it is not competent to appreciate the decision of the Council to refer the case to the criminal authorities.19 The Paris Court of Appeal confirmed this position in a second decision, which will also be applicable to the Authority’s decisions in this regard.20 Thus, the Authority’s power to decide whether to refer the case or not is a discretionary one.

Blowing the whistle – leniency and reduction of fines

While the Authority is in a position to commence investigations on its own initiative or following a complaint, an investigation can also be commenced as a result of a leniency application. The provisions have been strengthened since the enactment of the NRE.

Article L464-2 IV of the Code provides that undertakings may be exonerated from financial penalties, either in part or in full, where they have ‘contributed to establishing the reality of a prohibited practice and to determine its authors by providing elements which the Authority or the administration were previously unaware of’. As with the procedure at EU level, it is necessary to provide new information to the competition authorities that will enable them to begin an investigation. Providing information that merely supports information already held by the authorities will not be sufficient to obtain full immunity from fines. Undertakings unable to satisfy the requirements for full immunity from fines can nevertheless apply for a reduction in fines.

In response to an increasing number of leniency applications, the Authority has decided to appoint a leniency officer, following the example of Dutch and German competition authorities. As a result, since September 2011, potential applicants can freely and anonymously contact the leniency officer to obtain information about the leniency programme. This officer attends meetings between the leniency applicant and the rapporteur, and provides technical support to the rapporteur in charge of the leniency case as well as cooperating with other competition authorities involved in multiple applications.21 Where an application for leniency is received by either the general rapporteur of the Authority or, in certain rare cases, the director general of the DGCCRF, the rapporteur that is appointed, or the director general, presents a request to the Authority for a grant of leniency. Following this is a private hearing at which said applicant and the public prosecutor present their views. The Authority then considers whether or not to grant leniency and, if it does, then grants full or partial leniency in respect of fines. The leniency procedure is a great and increasing success. Twenty-three leniency applications were submitted to the Council by the end of 2007, 18 in 2008, five in 2009, seven in 2010, four in 2011 and three in 2012, which leads to a total of 60 leniency applications by the end of 2012.22 Seven leniency decisions23 had been issued at the end of May 2013 and the first one was published on 11 April 2006, in the door manufacturing sector.24

The case involved 10 wooden door producers that implemented two national cartels. Nine of them were fined a total of €5 million, while the whistle-blower was granted full immunity. The total amount of the fine imposed may not seem particularly high, but the cartelists did not have very high turnovers – from €5 million to €82 million – and the fines imposed on them ranged from 0.75 per cent to 1.87 per cent of their turnovers. The Paris Court of Appeal dismissed the claims of two wooden door producers who brought an appeal against the Council’s decision.25

One of the leniency decisions was particularly interesting as the Council granted full immunity to two companies that had denounced the existence of the cartel. It held that they had both provided sufficient evidence enabling the Council to initiate proceedings as regards the denounced practices and to launch an inquiry in the relevant sector.26 However, it should be noted that these two companies were part of the same group. In 2008, two leniency decisions were issued by the Council: on 21 May, in the wood industry sector; and on 16 December, in the steel industry.

The same year, a laundry detergent cartelist, Unilever, disclosed the existence of a cartel to the Authority. In December 2011, the Authority fined the four major laundry detergent manufacturers a global amount of €367.9 million. Unilever obtained full immunity. This decision is one of the most important leniency cases the Authority has investigated, and the first one concerning a mass-market product. After Unilever had disclosed the existence of the cartel, all the parties involved decided to cooperate and to take part in the French leniency programme.27

Similarly, in May 2013, following a leniency application from a French chemical commodities distributor, the Authority issued a decision concerning commodity market products, fining a cartel a total of €79 million. The whistle-blower obtained full immunity while the second and third applicants to leniency respectively obtained 25 per cent and 20 per cent reductions.28

On the date of its first leniency decision, the Council also published a procedural notice on the French leniency programme, later completed by an additional set of guidelines. A new version of this notice was issued by the Authority on 21 March 2009 and is very similar to the Council’s notice. In it, the Authority established four conditions that the applicant must meet to be eligible for leniency, as the law sheds no light on this point. The applicant:

  • must fully cooperate with the Authority at every stage of the procedure;
  • should not have coerced any other member of the anti-­competitive agreement to enter into it;
  • must have stopped participating in the anti-competitive practice as soon as the procedure is launched and at the latest when it receives the leniency notice, although the Authority may postpone this date to prevent other members of the anti-competitive practice from becoming aware of the proceedings; and
  • must not inform the other parties to the anti-competitive practice of its leniency application.

The whistle-blower’s name is thus kept secret, within the limits of the Authority’s domestic and EU obligations, until the statement of objections is notified. In addition, the Authority undertakes not to refer the case of a leniency applicant to the public prosecutor under the criminal provisions mentioned above.

The procedural notice also detailed the following points:

  • the grant of a marker to applicants allowing them to know their rank and thus the amount of fine reduction they may be entitled to;
  • clarification of conditions for obtaining total or partial exoneration, wherein the Authority indicates the nature and the content of evidence and information applicants must provide to benefit from exoneration. The Authority also underlines the way applicants must behave during the investigation phase;
  • guarantees concerning statements made by companies are reinforced. The Authority provides a framework for the communication of these statements to ensure their confidentiality; and
  • the possibility to introduce a summary application with French competition authorities where the European Commission is likely to deal with the case. In such cases, the amount of information the applicant must provide is alleviated as long as the Authority has not decided to act in the case.29

Undertakings can also benefit from fine reductions as a result of a party not contesting the existence of the alleged practices. This procedure is known as the ‘negotiated settlement route’. In this case, the maximum fine that may be imposed is reduced by half. In addition to this reduced-fine ceiling, if the undertakings also offer commitments to modify their behaviour in the future, the Authority may grant a reduction to the actual fine.30 By way of illustration, the Council granted a 90 per cent reduction of the fine imposed on La Poste for anti-competitive discounts. La Poste did not contest the Council’s allegation and submitted a set of substantial undertakings designed to prevent any recurrence of such behaviour.31 The Council also implemented this procedure in the cablemaking and in the laundry cleaning and renting sectors in which the companies involved were respectively granted a fine reduction of 10 per cent and 100 per cent as they offered highly innovative measures that had not yet been implemented in France, such as an internal whistle-blowing procedure.32 It appears, from the existing cases applying the negotiated settlement procedure, that for the moment the French competition authorities seem to have found the proportion of fine reduction to be granted depending on the companies’ behaviour:

  • companies that undertake to implement compliance programmes for their employees or executives may be granted a 10 per cent reduction;
  • companies implementing a whistle-blowing procedure may be granted a 20 per cent fine reduction;33 and
  • companies taking further commitments such as behavioural commitments may be granted a 30 per cent reduction.

This approach is confirmed by a framework document on compliance programmes and guidelines on the negotiated settlement procedure published by the Authority on 10 February 2012.

In its framework document, the Authority stresses that compliance programmes should rely on measures creating a culture of compliance with competition rules, such as training, but also on internal alert, advice or audit mechanisms for preventing, detecting and processing potential infringements. In particular, it describes the key features of an effective compliance programme. The Authority confirms that the introduction of a compliance programme or the improvement of an existing compliance programme can lead to a reduction of fine of up to 10 per cent only in the case of settlement procedure. In addition, a company implementing a compliance programme that discovers and puts an end to an anti-competitive practice, other than a cartel, on its own initiative, could benefit from mitigating factors in any of the Authority’s subsequent investigation into this infringement.34

The antitrust settlement procedure guidelines mainly explain the practical aspects of this procedure. This procedure is aimed at speeding up the procedure in order to save time, while reducing companies’ costs and enabling the Authority to devote its resources to other antitrust cases. It should be noted that these aforementioned guidelines allow the combination of settlement and leniency procedures if the statement of objections as regards a company differ on at least one significant aspect from the content of its leniency application. Article L464-2 III of the French Commercial Code provides that, where the settlement procedure is used, the maximum fine that may be imposed on a party is halved (ie, the fine ceiling is reduced from 10 per cent of global annual turnover to 5 per cent). Further, in addition to this reduced ceiling, the aforementioned guidelines indicate that the fine can be reduced as follows:

  • 10 per cent reduction for the settlement procedure on a ‘stand-alone’ basis; and
  • 5 to 15 per cent additional reduction, if the company offers commitments.

These commitments can be either structural, behavioural or take the form of a compliance programme. The maximum fine reduction available under the aforementioned guidelines is therefore 25 per cent.35

Undertakings may also, since Ordinance 2004-1173 of 4 November 2004, offer commitments to remedy the situation and avoid a decision ruling on the existence of an infringement.36 Once said commitments are considered sufficient by the Authority, and after receiving the observations of interested third parties, the commitments will form part of the binding decision of acceptance issued by the Authority. By the end of 2012, this procedure had been implemented 46 times by the Council − followed by the Authority − since its entry into force and has proved effective in solving competition concerns within a short time frame.37 Nevertheless, the attractiveness of this procedure for undertakings could be undermined in the future further to recent decisions of the Paris Commercial Court in a private enforcement case, enjoining the Authority to disclose documents obtained during the commitment procedure.38 The Council restrained the application of such procedure in cases of horizontal agreements. However, in a case of collusion on various tenders, the Council applied such procedure and granted a 35 per cent reduction of the fine incurred. Nonetheless, the Council emphasised that this case should not be seen as setting a precedent allowing a party in a horizontal anti-competitive agreement to benefit from such procedure, due to the fact that the initiative for having collaborated with competition authorities preceded the introduction of the ‘leniency procedure’ into French law and the commitments offered by the parties were partially similar to those now required within such procedure. In addition, the Council underlined the significance of said commitments.39

The Authority published a Procedural Notice on 2 March 2009, which is very similar to the one the Council had published the previous year and which is to give general advice to undertakings on how to use the commitments mechanism. It holds that the procedure should not be applied to particularly serious agreements such as cartels. It specifies that the commitments submitted have to be relevant, credible and verifiable. They also have to be necessary and sufficient to address the competition concerns. The Notice further guarantees that all the documents provided by the undertakings in the course of the procedure are removed from the file if the procedure is prematurely terminated. It ultimately specifies the effects of the decision making the commitments compulsory, as well as the method for following up implementation of the commitments.40

Despite article 101 being fully applicable in France since 1 May 2004, the French leniency rules only apply in respect of breaches of article L420-1. No proposals have been made as yet to extend the leniency rules to cover breaches of article 101 and therefore in such circumstances it is always prudent to apply for leniency to the European Commission at the same time as making an application to the Authority.

Raiding the offenders – investigation powers

As the LME gave the Authority its own investigation services, the Authority will no longer depend on DGCCRF officers to lead investigations except maybe for certain local investigations.

Once the Authority is in charge of a case, either through a complaint or ex officio, a rapporteur will be appointed to conduct the investigations under the supervision of the general rapporteur. The rapporteur will instruct officers of the Authority to conduct further investigations, which may often take the form of dawn raids. In such circumstances, two procedures are followed.

Ordinary investigation (article L450-3 of the Code)

Any of the officers of the Authority may access business premises to request copies of business documents. This includes access to computers and the ability to conduct interviews. Failure to comply with such requests renders individuals liable to fines of up to €7,500 and up to six months’ imprisonment.

Judicial investigation (article L450-4 of the Code)

Where the officers of the Authority wish to conduct searches and seize documents from either business or domestic premises, they must obtain a warrant from a judge. Raids carried out under warrant must be carried out in the presence of a police officer and, in the absence of the representative of the company, two independent witnesses.

The attendance of external lawyers was not provided for by French law, and in practice their presence was thus a privilege and not a right until the ordinance implementing the LME. However, the ordinance implementing the LME includes the right for a company facing a judicial investigation within its premises to be assisted by an external lawyer.

The criminal chamber of the French Supreme Court has confirmed that a national judge may only find against a decision by the Commission ordering an inspection and seeking the assistance of the French authorities where such a course of action would be arbitrary or disproportionate.41 On the other hand, the judge cannot substitute its own assessment, as to the need for such an inspection, for that of the Commission. As such, the case law of the French Supreme Court is in line with the ruling of the European Court of Justice in case C-94/00, Roquettes Frères v Commission.

Once the officers of the Authority have completed their investigations, the rapporteur either prepares a statement of objections or proposes a decision that there is no case to pursue. The parties shall then have two months in which to access the case file and present their observations. In the case of a proposed decision that there is no case to pursue, the Authority shall then either agree or request further investigation.

Where a statement of objections has been issued and the parties have submitted their observations, the Authority shall prepare a draft report, which is communicated to the parties. The parties shall then have a further two months in which to comment on the proposed report. Following this phase, the Authority issues its decision.

Notes

  1. French Supreme Court, 5 October 1999, TGV Nord et Pont de Normandie.
  2. Act No. 2001-420 of 15 May 2001, ‘loi relative aux nouvelles régulations économiques’.
  3. Paris Court of Appeal, Judgment of 9 December 2003, against the former Competition Council’s decision 03-D-17 of 31 March 2003.
  4. Competition Council, decisions 05-D-64 of 25 November 2005 (‘relative à des pratiques mises en œuvre sur le marché des palaces parisiens’) and 05-D-65 of 30 November 2005 (‘relative à des pratiques constatées dans le secteur de la téléphonie mobile’).
  5. Paris Court of Appeal, 1st ch, sect H 26 September 2006 (rejected the appeal against decision 05-D-64). Paris Court of Appeal, 1st ch, sect H 12 December 2006 (rejected the appeal against decision 05-D-65).
  6. Commercial chamber of the French Supreme Court, 29 June 2007. Paris Court of Appeal, 11 March 2009.
  7. Commercial chamber of the French Supreme Court, 7 April 2010, Paris Court of Appeal, 30 June 2011, upheld by the French Supreme Court, 30 May 2012.
  8. Paris Court of Appeal, 7th Ch, pole 5, 15 May 2014 (overturned the decision 12-D-08)
  9. Article 24 of the Ordinance of 25 March 2004 amending article L464-6 of the Code.
  10. Competition Council, decision 03-D-01 of 14 January 2003 (‘relative au comportement de sociétés du groupe Air Liquide dans le secteur des gaz médicaux’).
  11. Competition Council, decisions 05-D-04 of 17 February 2005; 05-D-17 of 27 April 2005; 05-D-26 of 9 June 2005 and 05-D-47 of 28 July 2005. Second and fourth decisions were partly overturned by Paris Court of Appeal decisions of 13 December 2005 and 25 April 2006 but these decisions did not affect the principle applied by the Conseil on intra-group anti-competitive agreements; decision 10-D-03 of 20 January 2010; decision 10-D-04 of 26 January 2010 (upheld by the Paris Court of Appeal, 28 October 2010).
  12. Article L464-2 I and II of the Code.
  13. Competition Authority, notice of 16 May 2011 on the Method Relating to the Setting of Financial Penalties.
  14. Paris Court of Appeal, 29 March 2012.
  15. Competition Authority, decision 13-D-09 of 17 April 2013 (‘relative à des pratiques mises en œuvre sur le marché de la reconstruction des miradors du centre pénitentiaire de Perpignan’).
  16. Competition Authority, decision 13-D-03 of 13 February 2013 (‘relative à des pratiques mises en œuvre dans le secteur du porc charcutier’).
  17. Article L420-6 of the Code.
  18. Competition Council, decision 04-D-07 of 11 March 2004 (‘relative à des pratiques relevées dans le secteur de la boulangerie dans le département de la Marne’).
  19. Paris Court of Appeal, 1st CH, sect H, 26 October 2004.
  20. Paris Court of Appeal 1st CH, sect H, 22 February 2006. Appeal of the Council’s decision No. 04-D-39 of 3 August 2004.
  21. Competition Authority, Press release of 4 October 2011, Appointment, Anne Krenzer is appointed Leniency Officer for the Competition Authority.
  22. Competition Council, Activity Report 2007. Competition Authority, Activity Report 2011. Competition Authority, press release of 29 May 2013 Distribution of commodity chemicals cartel, fiche 4 la clémence, un outil de détection et de répression des cartels.
  23. Competition Council, decisions 06-D-09 of 11 April 2006, 07-D-48 of 18 December 2007, 08-D-12 of 21 May 2008 and 08-D-32 of 16 December 2008 ; Competition Authority, decisions 11-D-17 of 8 December 2011, 12-D-09 of 13 March 2012 and 13-D-12 of 28 May 2013.
  24. Competition Council, decision 06-D-09 of 11 April 2006 (‘relative à des pratiques mises en œuvre dans le secteur de la fabrication des portes’).
  25. Paris Court of Appeal. 1st CH, sect H, 24 April 2007, rejects the appeal against Competition Council decision 06-D-09 of 11 April 2006.
  26. Competition Council, decision 07-D-48 of 18 December 2007 (‘relative à des pratiques mises en œuvre dans le secteur du déménagement national et international’).
  27. Competition Authority, decision 11-D-17 of 8 December 2011.
  28. Competition Authority, decision 13-D-12 of 28 May 2013 (‘relative à des pratiques mises en œuvre dans le secteur de la commercialisation de commodités chimiques’).
  29. Procedural notice of 17 April 2007.
  30. Article L464-2 III of the Code.
  31. Competition Council, decision 04-D-65 of 30 November 2004. See also Decisions 03-D-10 of 20 February 2003; 03-D-45 of 25 September 2003; 04-D-30 of 7 July 2004; 04-D-37 of 27 July 2004; 04-D-42 of 4 August 2004 and 05-D49 of 28 July 2005; 07-D-02 of 23 January 2007; 07-D-21 of 26 June 2007; 07-D-26 of 26 July 2007; 07-D-33 of 15 October 2007; 07-D-40 of 23 November 2007; 07-D-48 of 18 December 2007; 08-D-13 of 11 June 2008; 11-D-02 of 26 January 2011; 11-D-07 of 24 February 2011; 12-D-06 of 26 January 2012.
  32. Competition Council, decisions 07-D-21 of 26 June 2007 and 07-D-26 of 26 July 2007.
  33. Competition Council, decision 08-D-13 of 11 June 2008 (‘relative à des pratiques relevées dans le secteur de l’entretien courant des locaux’); Competition Authority, decisions 12-D-10 of 20 March 2012, challenged before the Paris court of Appeal (pending case) and 13-D-03 of 13 February 2013.
  34. Framework document on compliance programmes of 10 February 2012.
  35. Guidelines on antitrust settlement procedure of 10 February 2012.
  36. Article L464-2 I of the Code.
  37. Competition Council, decisions 05-D-12 of 17 March 2005; 05-D-16 of 26 April 2005; 05-D-25 of 31 May 2005; 05-D-29 of 16 June 2005; 06-D-01 of 7 February 2006; 06-D-20 of 13 July 2006; 06-D-24 of 24 July 2006; 06-D-28 of 5 October 2006; 06-D-29 of 6 October 2006; 06-D-40 of 20 December 2006; 07-D-07 of 8 March 2007; 07-D-17 of 10 May 2007; 07-D-22 of 22 July 2007, 07-D-30 of 5 October 2007; 07-D-31 and 07-D-32 of 9 October 2007; 07-D-43 of 10 December 2007; 07-D-45 and 07-D-46 of 13 December 2007; 08-D-04 of 25 February 2008; 08-D-21 of 7 October 2008; 08-D-26 of 5 November 2008; 08-D-34 of 24 December 2008; 09-D-01 of 12 January 2009; 09-D-08 of 16 February 2009; 09-D-11 of 18 March 2009; 09-D-27 of 30 July 2009; 09-D-32 of 26 October 2009; 10-D-01, of 11 January 2010; 10-D-06 of 26 February 2010; 10-D-18 of 14 June 2010; 10-D-20 of 25 June 2010; 10-D-27 of 15 September 2010; 10-D-29 of 27 September 2010; 10-D-30 of 28 October 2010; 11-D-08 of 27 April 2011; 11-D-11 of 7 July 2011; 11-D-14 of 20 October 2011; 11-D-18 of 15 December 2011; 11-D-20 of 16 December 2011, challenged before the Paris court of Appeal (pending case); 12-D-04 of 23 January 2012.
  38. Paris Commercial Court, 24 August 2011, upheld by the Paris Commercial Court, 16 March 2012.
  39. Competition Council, decision 07-D-02 of 23 January 2007 (‘entente dans le secteur de la collecte et du traitement des déchets en Seine Maritime’).
  40. Procedural notice of 3 April 2008.
  41. Criminal chamber of the French Supreme Court, Nos. 98–30 389 and 00–30 180, 22 October 2003.

King & Wood Mallesons SJ Berwin

92 avenue des Champs Elysées
75008 Paris
France
Tel: +33 1 44 346 346
Fax: +33 1 44 346 347
paris@eu.kwm.com

Marc Lévy
marc.levy@eu.kwm.com

Natasha Tardif
natasha.tardif@eu.kwm.com

www.kwm.com

SJ Berwin has combined with King & Wood Mallesons to create one of the top 25 law firms in the world, with more than 2,700 lawyers in 31 locations across Europe, the Middle East and Asia-Pacific.

Our international EU, competition and regulatory group is widely recognised as a leader in this field and has been named ‘Competition Team of the Year’ three times by Legal Business Magazine. The team in Paris, headed by Marc Lévy, comprises nine lawyers with extensive experience in advising and defending alleged cartel and abuse of market power cases before the French competition authorities as well as the European Commission. This includes advising on dawn raids, interim measures, fines, leniency applications, handling on-site inspections, and subsequent investigations by the authorities.

The team has also developed specific expertise in competition litigation before French courts, and is currently dealing with the first follow-on damages cases in Europe in the pharmaceutical sector. The team has excellent working relationships with officials in key departments of the French Competition Authority and the European Commission.

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