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500 Questions - Business Law

Auteur : Louis Vogel

Sommaire de l’ouvrage

  • Part 1: Economic law

    • Title 1: French competition law

      • Chapter 1: Written commercial agreement

      • Chapter 2: Significant imbalance

      • Chapter 3: Sudden termination of established relationships

      • Chapter 4: Competition investigation – French law

      • Chapter 5: Civil competition action

65. What is the purpose of an investigation?

The Commercial Code grants officials of the investigation department of the Competition Authority (AdlC) and the Minister of Economy the power to conduct the investigations necessary for the implementation of competition rules. These take several …

66. Who can initiate an investigation?

The initiative for the investigation belongs concurrently to the Competition Authority and to the Minister of the Economy and/or the Director General of Competition, Consumer Affairs, and Fraud Control based on suspicions of illicit practices or …

67. Are there limits to the power to demand an investigation?

The Competition Authority discretionarily chooses the type of investigation it wishes to implement , without being subject to a proportionality obligation . The two investigations are not mutually exclusive: the implementation of a basic …

68. What officials are authorized to conduct investigations?

Only investigators from the Competition Authority’s (AdlC) investigative division who have been authorized to do so by the General Rapporteur, or officials authorized by the Minister of the Economy, may conduct an investigation. The jurisdiction of …

69. What are the powers of authorized agents?

There are two types of investigations: basic investigation (enquête simple) under Art. L. 450-3 of the Commercial Code) and extensive court-ordered investigation (enquête lourde) Art. L. 450-4. The powers of the investigators depend on the legal …

70. Is the undertaking required to cooperate with the investigation?

The undertaking under investigation is required to cooperate. This duty to cooperate has two aspects, each giving rise to different sanctions, the relationship between which was clarified by the Ordinance of 26 May 2021 transposing the ECN+ …

71. Can the undertaking be subject to both a criminal penalty and an administrative sanction?

The Constitutional Council was asked to rule on the constitutionality of the cumulative sentencing resulting from the possible simultaneous application of Articles L. 464-2 and L. 450-8 of the Commercial Code to the same conduct. It ruled that the …

72. Can the undertaking be assisted by counsel?

Initially, the assistance of counsel was not provided for by the lawsduring the execution of search and seizure operations. As these had to be conducted quickly, only the presence of the occupant of the premises or their representative was …

73. What is a basic investigation (enquête simple)?

Authorized officials may, pursuant to Article L. 450-3, carry out, without prior judicial authorization, a number of investigative measures in order to detect and verify the existence of practices contrary to competition rules. The inspection may …

74. Are inspectors required to disclose the purpose of their visit?

Pursuant to the principle of fairness that must govern the gathering of evidence, inspectors must inform the individuals questioned of the purpose of the inspection in a sufficiently clear and precise manner. If the authorized agents can conduct …

75. What are the powers of investigators in basic investigations?

The powers of the investigators are exhaustively listed in Articles L. 450-3 to L. 450-3-3 of the Commercial Code. The investigators may: operate on public roads; access all places used for professional purposes or for the performance of a …

76. Can investigators be assisted by experts?

Article L. 450-3-1 of the Commercial Code allows investigators to call upon any qualified person designated by the administrative authority on which they depend. This person, who may notably be an IT expert, is authorized to: accompany the agents …

77. What documents are investigators entitled to access?

Investigators may request the disclosure and copying of books, invoices, or any other business documents. The courts, after requiring that investigators at least know of the existence of the requested documents and be capable of identifing them, …

78. Can investigators seize computerized documents during a basic investigation?

Article L. 450-3 allows officials, when carrying out controls on operations involving computers, to access software and stored data, as well as any necessary decryption information, to facilitate their work. They may request the transcription of …

79. Can investigators access computer login data?

Investigators may, with authorization from the General Rapporteur of the Competition Authority or the administrative authority responsible for competition and consumer affairs, request access to data stored and processed by telecommunications …

80. Which premises can investigators access?

Investigators access all premises or means of transport for professional use . Investigators may carry out unannounced inspections between 8 AM. and 8 PM and outside these hours when they are open to the public or when activities such as …

81. Are investigators authorized to interview the people present on the premises?

Authorized agents have the power to collect information and justifications on-site or by summons . Investigators are not required: to require company representatives to face and respond to individuals whose statements implicate them; to question …

82. Are there any legal remedies available against enforcement measures taken in a basic investigation?

There is no specific recourse against investigative operations in the context of a basic investigation for two reasons: Article L. 450-3 exhaustively lists the powers of the investigators and the investigation does not require judicial …

83. What is an 'enquête lourde' (court-ordered investigation)?

When the search for evidence requires inspections of premises or seizing documents, investigators must first obtain judicial authorization (a warrant). Only investigations requested by the Commission, the Minister of the Economy, or the General …

84. What should be included in an application for an investigation?

The request for an investigation must include all information likely to justify the visit . However, when the request concerns ongoing offenses, it may contain only elements that suggest, in this case, the existence of the practices for which …

85. What conditions must be met for an application to be considered well-founded?

Before granting authorization to conduct searches, the judge verifies the merits of the application for judicial authorization and makes a decision based on the information provided by the Administration. This information must have a lawful origin …

86. What formal requirements must the court order meet?

The authorization decision must specify: that the application was submitted as part of an investigation initiated by the Minister of the Economy or by the General Rapporteur; that the designated agents are authorized to conduct the inspections; …

87. Must the order specify the subject-matter of the investigation?

The court order must ensure that the person concerned has been informed of the reason for the measures, the alleged anticompetitive practices, and the sector involved: the sector on which the investigations must focus may not need to be specified …

88. What is the ratione materiae scope of judicial authorization?

Judicial authorization, which does not entail a declaration of guilt and does not prejudge the assessment on the merits, authorizes the seizure of all documents relating to the alleged offenses . On the other hand, documents seized by the …

89. What is the ratione loci scope of judicial authorization?

Although its purpose is to investigate alleged offenses in any location, the authorization (warrant) is not unlimited in scope scope . When simultaneous action in multiple locations is necessary, the freedom and detention judge designated by the  …

90. Can the search take place without notifying the undertaking?

It is not necessary for the order to be served before the inspectors enter the premises . Indeed, a thorough investigation, justified by the search for evidence of serious agreements, can be conducted through unannounced and simultaneous …

91. Must police officers be present during searches?

The juge des libertés et de la détention designates the heads of the relevant territorial units, who in turn appoint as many judicial police officers as there are premises to be searched. These officers are responsible for: attending search and …

92. What powers do investigating officers have?

Authorized agents may conduct inspections at any location and seize documents and any data storage media, and, where applicable, seizue the equipment needed to decrypt them. They may also affix seals to any business premises, documents, and data …

93. Which premises are covered by the search?

The warrant authorizes investigators to conduct searches in all places, including private ones, where documents related to the anticompetitive or restrictive practices being investigated are likely to be found. This may include the premises of the …

94. Can investigators conduct interviews?

Authorized agents may, during inspection operations, interview the occupant of the premises or their representative to gather from them the information or explanations useful for the investigation. If there are plausible reasons to suspect that …

95. What documents can be seized?

Authorized agents may seize any document and any information medium related to the purpose of the investigation i.e. primarily business documents, regardless of the medium on which they are strored . The Administration can, in principle, only seize …

96. Can investigators seize email accounts?

As long as the documents in question are business-related, the medium on which they are stored is irrelevant . The difficulty with electronic messaging is that they are contained in indivisible files, which, in the context of a seizure, makes it …

97. Can investigators require the undertaking to commit to providing access to email messages after operations have concluded?

A new practice by investigating agents has developed recently, consisting, in case of technical difficulty in quickly copying or sorting through the email or computer files of the visited undertakings, of obtaining from them a commitment to carry …

98. What about documents covered by legal privilege?

The power granted to the agents of the Competition Authority to seize documents and electronic media is limited by the principle of the right to a defense, which requires respecting the confidentiality of correspondence exchanged between a lawyer …

99. Can an undertaking challenge the legality of the seizure of documents in a third-party undertaking?

Computer files located on the premises of the inspected company may be seized, even if they pertain to a person other than the owner of the computer on which they are stored or to records relating to that owner’s former employer, provided they are …

100. Can the search and seizure take place outside the jurisdiction of the judge having authorized it?

Searches and seizures taking place outside the jurisdiction of the judge must be subject to a letter rogatory to the liberties and detention judge of the Judicial Court in whose jurisdiction the search is conducted. The judge appointed by the …

101. Who is responsible for overseeing search and seizure operations?

The search and seizure is conducted under the supervision of the judge who authorized it or under that of the judge of freedoms and detention of the court in whose jurisdiction the search takes place and to whom the judge who authorized the …

102. What remedies may be brought against the authorization order?

The order by which the judge of freedoms and detention rules on the request for authorization of search and seizure may be appealed before the first president of the Court of Appeal in whose jurisdiction the judge authorized or refused the measure. …

103. What remedies can be introduced against the enforcement measures of the order?

The appeal against the conduct of search and seizure operations must be filed before the first president of the Court of Appeal of the jurisdiction of the judge who authorized them. The fact that this judge may be the same as the one who hears the …

104. Which judge has jurisdiction to hear the appeal?

The judge competent to rule on both the appeal of the initial authorization order and the supplementary one issued on commission rogatory is the first president of the court in whose jurisdiction the initial order was issued. However, the first …

105. What is the process for bringing an appeal?

An appeal against authorization orders or the conduct of operations must be filed in accordance with the rules set forth in the Code of Criminal Procedure, by submitting a statement to the court clerk’s office. The deadline for filing an appeal is …

106. What powers does the appellate judge have?

When the first president of the Court of Appeals finds that the authorization order is invalid, he or she cannot simply set it aside but must also review the submitted documents and rule on the merits of the application. The setting aside of the …

107. How to file an appeal in cassation?

The court order of the first president may be subject to an appeal within five days according to the rules of the Code of Criminal Procedure. The appeal may be filed by the general rapporteur, as well as by any party to the proceedings that led to …

108. Is the drafting of a report (procès-verbal) mandatory?

Investigations result in the establishment of official reports also described as minutes (procès-verbal) and, where applicable, reports . The official reports are transmitted to the competent authority. They are considered valid until proven …

109. What information must be included in the procès-verbal?

Reports prepared in the course of a routine investigation state the nature, date, and location of the findings or inspections conducted. These details are not required by law, and failure to include them does not render the report invalid . The …

110. Must the Administration comply with formal rules?

Until the Hamon Law of 17 March 2014, the interested parties received a duplicate of the report. Now, Article L. 450-2 provides for the delivery of a copy of it . In the absence of the occupant of the premises or their representative, a copy of …

111. Can you refuse to sign the report?

The occupant of the premises, their representative, or the person heard may refuse to sign the report. In case of refusal, this is noted in the document. However, even if the signature of the persons who actually attended the operations constitutes …

112. Must the adversarial principle be respected at the investigation stage?

The administrative investigation is not subject to this principle, as the search for evidence of alleged offenses does not prejudge the guilt of the undertakings. Whether operations are conducted as part of a basic or court-ordered investigation, …

113. What is the extent of the duty of fairness imposed on investigators?

In order not to irreparably compromise the rights of the defense, investigators are subject to a duty of fairness in the search for evidence: they must clearly inform undertakings of the purpose of their investigation. Regardless of the legal …

114. Can the undertaking invoke professional secrecy?

A distinction must be drawn between information that is particularly sensitive for the undertaking, covered under trade /business secrets (secret d'affaires), the protection of which is organized by Article L. 463-4 of the Commercial Code, which …

115. Can the undertaking request that documents covered by trade secrets be excluded from the proceedings?

Pursuant to Article L. 463-4 of the Commercial Code, the general rapporteur may grant the protection of trade secrets or refuse to lift this secrecy. When documents are covered by trade secrets, only a non-confidential version and a summary of the …

116. Can victims of anticompetitive practices use documents obtained in the competition procedure in a civil action?

Since the Ordinance of 9 March 2017, the court hearing a compensation action may order the disclosure or production of documents from the competition file when the procedure is closed by a decision of the Competition Authority (Art. L. 483-8, …

117. Can interested parties obtain access to the file?

Any interested person has the right to access the documents on which the judge relied to grant the authorization for search and seizure. This right of access applies to all documents, including those covered by business secrecy or anonymity, as …

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