French Competition Law provides a comprehensive review of the French rules relating to competition: restrictive agreements, commercial negotiation, abuses of a dominant position, procedure and merger control.

French Competition Law

The Competition Authority may be described as an independent administrative agency. The 1986 Ordinance initially provided for appeals to go before administrative rather than ordinary jurisdictions. However, in order to unify procedural rules, lawmakers transferred jurisdiction in competition appeals to ordinary judicial courts . This legislation has not, however, completely resolved the question o …

Administrative court enforcement of competition rules

The Commercial Code (Articles L. 450-1 to L. 450-8, L. 463-1 to L. 470-2 and L. 490-8 and L. 490-9. See also Articles R. 450-1, R. 450-2, D. 450-3, R. 463-1 to R. 470-2, R. 490-1 to R. 490-10) regulates all procedures coming under the heading either of anticompetitive practices or of price transparency and  restrictive practices involve an investigation, which may then be  followed by an adversarial decision-making procedure, as set out in the  relevant sections of the Commercial Code. The investigations are conducted in the same manner regardless of the  matter at hand, whereas the type of  decision-making procedure is dependent  on what offense is involved: 

- offenses coming under the heading of price transparency and restrictive practices (Commercial Code Title IV) are exclusively dealt with by the civil or criminal courts and, since the Hamon law, under certain conditions also by the Administration and the administrative courts;

- anticompetitive practices subject to Articles L. 420-1, 420-2, L. 420-2-1, L. 420-2-2 and L. 420-5 come within the jurisdiction of the Competition Authority, which is the only institution empowered to require offenders stop the practice or hand down fines ;

- less serious - or micro-practices fall within the competence of the Minister of the Economy who is empowered to issue injunctions or order settlement with jurisdiction reverting to the Competition Authority in the event that undertakings refuse to comply (Art. L. 464-9);

- renegotiation of commercial terms and conditions and de-listing practices (observed in particular in connection with the creation of a joint referencing facility by two distribution groups), which do not constitute anticompetitive practices, may fall within the jurisdiction of the Commission for the examination of commercial practices .

The lack of transparency of the contractual terms of a distribution network is a matter for the courts: see Competition Council decision No 01-D-58 of 24 September 2001, LawLex200200002279JBJ, No. 02-D-24 of 27 March 2002, LawLex200002192JBJ, which excludes the Competition Authority's jurisdiction to assess the validity of the termination of a commercial agreement.

Competition Council decision No 03-D-11 of 21 February 2003, LawLex200300001054JBJ.

Principles for the distribution of jurisdiction

Article L. 420-7 of the Commercial Code specifies that litigation regarding the application of Articles L. 420-1 to 5 and/or Articles 101 and 102 TFEU should be taken, without prejudice to specific jurisdictional rules, before a specialized judicial court (tribunal judiciaire) or commercial court. By application of Article R. 420-3 of the Commercial Code, the commercial or judicial courts in Marseille, Bordeaux, Lille, Fort-de-France (Martinique), Lyon, Nancy, Paris and Rennes have exclusive jurisdiction for competition proceedings that apply to retailers, artisans and other bodies . All appeals against the rulings of the above-mentioned courts come within the jurisdiction of the Paris Court of Appeal . In the event that a non-specialized court has erred in its decision, the Court of Appeal of its jurisdiction will still have the authority to rule on the appeal, but it will be obliged to automatically find the decision ultra vires, to set aside the judgment and to rule, if necessary, within the limits of its own jurisdiction . A jurisdiction clause cannot derogate from these mandatory rules . The 2004 Ordinance  amended the provisions of Article L. 490-9 of the Commercial Code in line with Regulation No 1/2003 of 16 December 2002  which empowered national authorities to apply EU competition law .

In addition, Article L. 623-1 of the Consumer Code, which stems from the Hamon Law of 17 March 2014, and introduces class actions (actions de groupe) into French law, particularly in the area of competition, provides that the civil courts have jurisdiction to hear such matters. Article R. 623-2 designates the judicial court of the place where the defendant resides and, if the defendant resides abroad or has no known domicile or residence, the judicial court in Paris.

Where proceedings were initiated at other courts prior to entry into force of the decree, those courts may retain jurisdiction for those cases: Cass. com., 9 November 2010, LawLex201000001248JBJ, holding that a dispute relating to a refusal by a distributor to a competitor who has requested a price survey in its establishments is subject to the jurisdiction of the commercial court pursuant to Article L. 420-7; Montpellier, 14 March 2011, LawLex201100000838JBJ, which stresses that the lack of jurisdiction objection under of Article L. 420-7 may be raised even if the rules relating to anticompetitive practices are merely invoked in defense.

Decree No 2005-1756 of 30 December 2005, codified in Annex 4-2 of the regulatory part of the Commercial Code.

Cass. com., 18 October 2017, LawLex201700001682JBJ.

CA Versailles, 31 March 2011, LawLex201100000773JBJ.

Ordinance No 2004-1173 of 4 November 2004, Article 1, JO of 5 November 2004

Article 6 Council Regulation (EC) 1/2003 of 16 December 2002, LawLex200300000018JBL.

Under Regulation No 17/62 only Articles 81(1), 82 and 86(2) of the Treaty had direct effect: Case 127/73 Belgische Radio en Televisie v SV SABAM [1974] ECR 51, LawLex200200004138JBJ; Case C-19/93 -Rendo and Others v Commission- [1995] ECR I-3319), LawLex200200003804JBJ; CA Paris, 19 January 1987, LawLex200200001047JBJ.

Jurisdiction of civil courts

The criminal courts also enjoy jurisdiction as regards actions brought against any natural person alleged to have fraudulently  played a personal and decisive role  in conceiving, organizing or carrying out practices prohibited by Articles L. 420-1, L. 420-2 and L. 420-2-2 (Article L. 420-6) . The finding of an actual or potential effect on the market is sufficient; the demonstration of harm is not required . A complaint to and investigation by the Competition Authority interrupts the criminal statute of limitations and a criminal complaint and investigation interrupts the statute of limitations before the Competition Authority (Article L. 462-7) .

By virtue of Article L. 462-6, the Competition Authority may refer cases to the public prosecutor. The Paris Court of Appeal declined to rule on this matter  although considered that it could itself order referral to the public prosecutor on the basis of Article 40 line 2 of the Code of Criminal Procedure . Article L. 420-6 is almost never applied , as using criminal provisions to punish competition law offenses runs the risk of logjamming the system. First of all, under the principle “criminal over civil law”, a prosecution paralyzes civil and commercial court procedures. Next, the coexistence of criminal and competition proceedings is often awkward, in particular as regards obtaining evidence exhibits from criminal jurisdictions. The Competition Authority - and not the rapporteur - is alone entitled to request documents  able to be provided exclusively by the investigating judge not the prosecutor. In addition, only the minutes and/or investigation reports from a criminal procedure that have a direct link to the matter before the Competition Authority may be communicated.

Article L. 420-6 was a deterrent to the use of the leniency procedure  since leniency only worked for legal entities - it was hard to imagine a  director admitting a company had participated in a cartel if such a  confession would leave him or her open to criminal prosecution. This  drawback has been partially eliminated with the transposition of the  ECN+ Directive. A new article, L. 420-6-1, incorporated by the Ordinance  of 26 May 2021, now extends the benefit of the immunity from fines  granted to the undertaking to its directors and employees if it is  established that they have actively cooperated with the investigating  authorities and the Competition Authority.

Competition Council decision No 04-D-07 of 11 March 2004, LawLex200400000582JBJ, recognition of illegality; CA Grenoble, 7 April 1999, LawLex200300004485JBJ and Cass. crim., 16 May 2001, LawLex200300001127JBJ, participation in meetings; CA Rouen, 25 February 2002, LawLex200400004631JBJ, cover bid.

See CA Rouen, 25 February 2002, LawLex200400004631JBJ: the signing of a tender submission file is sufficient to establish the personal and decisive nature of the participation. Also see Cass. crim., 9 November 1995, LawLex200300000841JBJ.

On the Competition Authority's lack of jurisdiction in this matter, see Competition Authority decision No 19-D-22 of 22 November 2019, LawLex201900001467JBJ.

TGI Albertville, 23 October 2000, LawLex200300000780JBJ.

See esp. Cass. crim., 16 December 1976, holding that reports established by officials from  the Directorate General of Internal Trade and Prices (Direction générale du commerce intérieur et des prix) authorized to ascertain abuse of a dominant position and anticompetitive infringements interrupt the statute of limitations in criminal matters.

CA Paris, 26 October 2004, LawLex200400003046JBJ.

CA Paris, 22 February 2005, LawLex200500005697JBJ.

See Cass. crim., 21 November 1991, Bull. crim.,  No 47, defendants acquitted for lack of proof of personal acts that contributed to an abuse of a dominant position; 14 December1995, LawLex200200002820JBJ, Bull. crim., No 384, guilty finding for the head of an undertaking who sent a quote for roofing in addition to the quote he had been asked to provide on the letterhead of a separate company in order to simulate non-existent competition:  this decision may be questionable insofar as there was no concerted action; 16 May 2001, LawLex200300001127JBJ, Bull. crim., No 124, finding against the vice president of a general council and notary public, who had conceived, organized and implemented a price agreement between several undertakings wishing to maintain their acquired positions on the market of an administrative district (département). Also see TGI Nantes of 30 June 2011, LawLex201100001393JBJ.

Jurisdiction of criminal courts

Article L. 464-9 of the Commercial Code, introduced by Ordinance  2008-1161 of 13 November 2008 and amended by the Hamon Law of 17 March  2014, reinforces the duality of competition authorities in relation to  anticompetitive practices. Under the terms of the legislation, the  Minister of the Economy has the power to issue injunctions and make  settlements in the case of anticompetitive micro-practices. Initially,  the practices covered by Articles L. 420-1, L. 420-2, L. 420-2-1, L.  420-2-2 or L. 420-5, which affected a local market and were not caught  by Articles 101 and 102 TFEU, fell within the scope of this text, as  long as the annual turnover in France of the undertakings in question  did not exceed EUR 50 million for each of them, and that the combined  turnover did not exceed EUR 200 million . The DDADUE Law  of 3 December 2020 extended Minister's power of intervention by removing the condition that a local market be affected.

In addition to ordering undertakings to put an end to their anticompetitive micro-practices, the Minister may, under the same conditions, propose a settlement. The amount of the settlement may not exceed EUR 150,000   or 5% of the last known turnover in France, whichever is lower . The Minister may not issue an injunction or propose a settlement if the same facts have already been examined by the Competition Authority. However, any action for the same facts before the Competition Authority is extinguished once the undertakings have fulfilled the obligations arising from the injunction or acceptance of the settlement.

The Minister of the Economy notifies the suspected undertakings, by registered letter with acknowledgement of receipt, of the facts ascertained that may constitute an infringement. The Minister attaches to this notification the administrative investigation report which establishes the alleged infringements, their legal classification and their imputability. The expected sanctions - injunction and/or fine - by way of settlement are also stated. The file is accessible to the addressees subject to the protection of business secrets. The parties have a time-limit of two months to submit their written, or sometimes oral observations.The assistance of counsel is provided for by law (Art. R. 464-9-1 of the Commercial Code). The Minister may either close the case or issue an injunction to cease the infringement and/or indicate to the undertakings the amount proposed as a settlement, by registered letter with acknowledgement of receipt. The decision specifies for each undertaking concerned the time-limits for compliance with the injunction and for payment of the proposed settlement amount.

Decree No 2022-1701 of 29 December 2022 has strengthened the Administration's prerogatives with respect to the publication of injunctions .  Under the new wording of Article R. 469-9-1 of the Commercial Code, the injunction may now be publicized in the press, by electronic means or by posting. These three methods of publication may be ordered cumulatively. The publication or posting may take the form of a press release informing the public of the reasons for and the mechanism of these measures, along with a message to raise public awareness of the practices identified. The injunction or settlement measures may also be published in the Official Journal or in one or more other press publications, or by one or more electronic public communication services. These measures, which may be accompanied by the disclosure ("naming and shaming") of the identity of businesses responsible for unlawful practice are presented as a means of reinforcing the DGCCRF's preventive and informational role .

The Competition Authority is informed of the injunctions issued and settlements reached . If the undertaking has not countersigned the decision within one month of being notified of it, it is deemed to have refused the settlement and to have refused to comply with the injunction (Art. R. 464-9-2 Commercial Code). This refusal triggers a referral to the Competition Authority (Art. R. 464-9-3) . The President of the Competition Authority or a vice-president designated by him/her may adopt the decision alone (Art. L. 461-3) .

Prior to the Law of 17 March 2014 on consumer affairs, the threshold was EUR 100 million.

Law No 2020-1508 of 3 December 2020 on various provisions of adaptation to EU law (DDADUE) in economic and financial matters.

Prior to the Law of 17 March 2014 on consumer affairs, the maximum amount was EUR 75,000.

The amounts resulting from the settlement are paid to the Treasury and recovered in the same way as receivables unrelated to taxes and property.

Decree No 2022-1701 of 29 December 2022 defining the procedures for publicizing measures taken in application of Book IV of the Commercial Code and Book V of the Consumer Code, OJ 30 December 2022.  The text concerns DGCCRF injunctions in respect of anticompetitive practices, restrictive practices (new Art. R. 470-1 Commercial Code) and consumer practices (new Art. R. 521-2 Consumer Code).

Also published on the DGCCRF website: http://www.economie.gouv.fr/dgccrf/pratiques-anticoncurrentielles-transactions-et-injonctions.

Issued after undertakings refused to settle, see Competition Authority decision No 17-D-13 of 27 July 2017, LawLex201700001323JBJ: EUR 80,000 fine; No 18-D-02 of 19 February 2018, LawLex201800000316JBJ, fines between EUR 10,000 and 60,000; No 19-D-05 of 28 March 2019, LawLex201900000404JBJ, fine of EUR 75,000; No 21-D-05 of 4 March 2021, LawLex202100000634JBJ, fine of EUR 435,000, reduced to EUR 272,000 on appeal (CA Paris, 9 March 2023, LawLex202300003351JBJ).

Competition Authority decision No 13-D-08 of 15 April 2013, LawLex201300000709JBJ, which emphasizes that the application of Article L. 461-3 is not limited to “facts referred to the Authority by the Minister pursuant to the fourth paragraph of Article L. 464-9”, as this requirement only applies to the decisions referred to in Articles L. 464-2 to L. 464-6.

Jurisdiction of Minister of the Economy

The Competition Authority may be described as an independent administrative agency. The 1986 Ordinance initially provided for appeals to go before administrative rather than ordinary jurisdictions. However, in order to unify procedural rules, lawmakers transferred jurisdiction in competition appeals to ordinary judicial courts . This legislation has not, however, completely resolved the question of the division of powers between the judicial and administrative branches of government. In effect, Article L. 410-1, which defines the scope of application of competition rules, provides for the application of these rules to public bodies, notably within the framework of public service delegation agreements, as long as they are engaged in production, distribution or service activities. In principle, however, the validity of administrative acts is subject to review by the administrative courts . On numerous occasions, the Court of Conflicts (Tribunal des conflits) has applied the traditional rules governing the division of jurisdiction between different levels of jurisdiction. It considers that the Competition Authority can only rule on the validity of acts that do not involve the exercise of public authority .

Initially, the Council of State was very reluctant to apply competition rules, on the grounds that the organization of a public service could not constitute a production, distribution or service activity within the meaning of this provision . Then, following a reference for a preliminary ruling from a judicial instance, the Council agreed to examine not only with regard to national provisions, but also that of the TFEU, the validity of:

- a regulatory act, such as a decree  or an order (arrêté) ;

- enforcement measures relating to billposting .

However, this concurrent jurisdiction creates a risk of divergent interpretation between the Council of State and the authorities responsible for enforcing competition law, i.e. the Competition Authority and, in the event of an appeal, the Paris Court of Appeal and the Court of Cassation. This risk calls for cooperation between the relevant jurisdictions. Accordingly, the Council of State bases itself on Article L. 462-3 of the Commercial Code to consult the Competition Authority for information on the application of competition rules . Conversely, the General Court reserves the right, where the Competition Authority has jurisdiction, to refer questions to the administrative authority for a preliminary ruling on the legality of administrative acts.

Law No 87-499 of 6 July 1987 transferring litigation concerning the Competition Council's decisions to the judicial courts. See Cons. d'Ét., 9 June 2015, LawLex201500000801JBJ, holding that the Council of State does not have jurisdiction to hear an appeal for excess of power brought by an undertaking against a request for information sent to it by the Competition Authority in the context of the investigation of a case relating to anticompetitive practices; CA Paris, 24 June 2015, LawLex201500000832JBJ, according to which the judicial court alone has jurisdiction to hear actions for damages brought by a public authority against natural and legal persons under private law for breaches of competition rules prior to the conclusion of a public contract.

Trib. conflits, 6 June 1989, LawLex200003340JBJ; 4 November 1996, LawLex200002868JBJ; 19 January 1998, LawLex200002187JBJ,

Trib. conflits, 6 June 1989, LawLex200003340JBJ; 4 November 1996, LawLex200002868JBJ; 19 January 1998, LawLex200002187JBJ

Cons. d'Ét., 3 November 1997, LawLex200200002885JBJ.

Cons. d'Ét., 28 July 1999, SA Bouygues, No 206749.

Cons. d'Ét., 1 January 1998, BID, 1999, No. 1, 13.

Cons. d'Ét., 7 July 2000, LawLex200200002188JBJ.

Cons. d'Ét., 22 November 2000, LawLex200003262JBJ.

Cons. d'Ét., 26 March 1999, No. 202260, precarious occupation agreement for public property.

Trib. conflits, 19 January 1998, LawLex200002187JBJ

Directive No 2019/1 or ECN+ (European Competition Network+), adopted on 11 December 2018  aims to ensure that national competition authorities (NCAs) have the guarantees of independence, resources, and enforcement and fining powers necessary to apply Articles 101 and 102 TFEU effectively so that competition in the internal market is not distorted and that consumers and undertakings are not put at a disadvantage by national laws and measures which prevent national competition authorities from effectively enforcing competition law. To illustrate the need for such guarantees, the recitals of the directive point out that divergences between national laws allow undertakings in some Member States to escape fines by simply restructuring, diminishing the attractiveness of the leniency programs due to the legal uncertainty that they create, and preventing the imposition of sufficiently dissuasive fines in certain Member States. To put an end to those discrepancies, the directive harmonizes the laws of the Member States, in the cases where NCAs apply Articles 101 and 102 TFEU in parallel with the provisions of their national competition law to the same case. 

The directive establishes a procedural base common to all NCAs, which aims to improve the efficiency of the procedures for implementing Articles 101 and 102. Essentially, it extends to the NCAs the procedural rules that are imposed on the Commission by Regulation No 1/2003 and its implementing legislation, as well as the case-law interpretations of the Court of Justice, particularly as regards the definition of undertaking (liability of the parent undertaking for the infringing behavior of its subsidiary and seeking the economic successor of the undertaking in case of restructuring). The directive guarantees to undertakings the application  of rights complying with the general principles of Union law and the Charter of Fundamental Rights of the European Union by the NCAs which are bound by the rights of defense, in particular the right to be heard, the right to an effective remedy, to have proceedings conducted within a reasonable timeframe and to have a Statement of Objections before any decision is taken (Art. 3). Member States must guarantee the independence of NCAs and their financing (Art. 4 and 5). The text lists the minimum powers that the NCAs will have to carry out their investigations (Art. 6 to 9), to find and terminate an infringement (Art. 10), take interim measures (Art. 11) and accept commitments (Art. 12) and lays down the rules for setting fines and periodic penalty payments (Art. 13 to 16), those designed to enhance the effectiveness and attractiveness of leniency programs (Art. 17 to 23) and those relating to mutual assistance between NCAs (Art. 24 to 28). 

What will the changes brought by the directive mean for undertakings doing business in France? In fact, very little. The scheme is inspired by the rules applicable to the Commission and the systems of the most developed competition law countries, including France. However, some of the text's relatively worrying particularities will require a modification of our law, proposed by the government as part of the examination of the PACTE Law, but fortunately postponed due to the Constitutional Council's legislative  rider . 

Article 10 authorizes NCAs to take corrective measures to ensure termination of the infringement. French law already has this option, but the directive specifies that the measures may be of a structural as well as a behavioral nature. However, until now, although no law requires it, the French competition authorities have always restricted themselves, in the area of anticompetitive practices, to behavioral injunctions, most often in the modification of contractual provisions. Recital 37 of the directive goes further referring, with regard to structural remedies, to the obligation to dispose of a shareholding in a competitor or to divest a business unit. However, the EU legislator has chosen to impose a safeguard by requiring that, when deciding between two equally effective remedies, NCAs should select the remedy that is least burdensome for the undertaking. The fear is that endless judicial debates will take place on the question of equivalence and/or level of effectiveness of one type of measure compared to another.

Another worrying innovation is the new power of the NCAs to impose interim measures on their own initiative, without requiring any application for such measures by one of the parties, under Article 11. According to the recitals of the directive, the text is intended to enable NCAs to deal with developments in fast-moving markets, particularly in the digital environment, and to avoid market developments that could be very difficult to reverse by a decision taken by an NCA. Even if the text frames this power by limiting it to “cases where there is urgency due to the risk of serious and irreparable harm to competition”, a sword of Damocles will still now permanently hang over undertakings.

In terms of evidence, it should be noted that, contrary to current settled law in France , the ANCs will henceforth be permitted to use “covert recordings” provided those recordings are not the sole source of evidence on which the conviction is based (recital 73 and Art. 32).

As regards the ceiling of the fine, the French Competition Authority has already indicated in its press release welcoming the adoption of the directive, that the transposition of the text should lead to a substantial change in French law. Indeed, at present, Article L. 464-2 of the Commercial Code distinguishes between undertakings, for which the fine is 10% of their turnover and  entities which are not undertakings ("organizations" or “associations of undertakings”, such as trade organizations or professional orders), for which the fine cannot exceed EUR 3 million. Article 15 of the directive fixes the maximum amount of the fine as not less than 10% of the sum of turnover and which is applicable to both undertakings and associations of undertakings. The latter must therefore expect an increase in the amount of the fines that may be imposed on them. In this respect, the second paragraph of Article 15 specifies that where an infringement by an association of undertakings relates to the activities of its members, the maximum amount of the fine shall be not less than 10 % of the sum of the total worldwide turnover of each member active on the market affected by the infringement of the association. However, the financial liability of each undertaking in respect of the payment of the fine shall not exceed the maximum amount set in accordance with paragraph 1.

More reassuringly, Article 4(5) gives NCAs the power to set priorities and reject complaints that they do not consider to be an enforcement priority. Minor restrictions will thus be able to escape the wrath of competition law.

Likewise, Article 23 on the interplay between applications for immunity from fines and sanctions imposed on natural persons requires Member States to ensure that current and former directors, managers and other cartel members seeking immunity from fines are fully protected against penalties imposed in the context of non-criminal administrative and judicial proceedings or criminal proceedings concerning their participation in the cartel covered by the application for immunity, relating to violations of national legislation which pursue mainly the same objectives as those pursued by Article 101 TFEU.

Article 3(2) of the directive requires Member States to ensure that the exercise of the powers conferred on NCAs is subject to appropriate safeguards in respect of the undertakings' rights of defense, including the right to be heard and the right to an effective remedy before a tribunal. Is there now finally hope that the French legislator will seize the opportunity to institute a right of immediate recourse against the basic investigation measures pursuant to Article L. 450-3 of the Commercial Code?

The transposition of the directive into French law was carried out in two stages: first by decree, as regards the provisions relating to the procedural rules governing leniency  and then by ordinance  for the other provisions.

Directive No 2019/1 of 11 December 2018 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market, OJEU L 11/3 of 14 January 2019.

See Constitutional Council decision No 2019-781 DC of 16 May 2019.

Cass. Ass. plén., 7 January 2011, LawLex201100000031JBJ.

Decree No 2021-568 of 10 May 2021 relating to the procedure for total or partial exemption from financial penalties provided for in IV of Article L. 464-2 of the Commercial Code.

Ordinance No 2021-649 of 26 May 2021 on the transposition of Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market.

French Competition Law

382. Administrative court enforcement of competition rules

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382. Administrative court enforcement of competition rules

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