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 controls in place concern both the search warrants authorized by the freedoms and detentions judge (JLD - juge des libertés et de la détention) and its execution. The two systems have been brought into line by the Ordinance of 13 November 2008.

1) Control of the search warrant authorization

Court orders issued by the JLD may be appealed to the President of the Court of Appeal in the jurisdiction of the latter. An appeal in the Court of Cassation may then be available against a warrant issued on appeal. As part of the appeal, the President of the Court of Appeal must personally analyze the documents produced by the Administration to ascertain whether they justify the requested search and seizure operations . If he or she considers that the warrant was issued on the basis of documents that were withheld and not examined during the adversarial process, it may not set it aside without examining whether other evidence of anticompetitive practices could not be deduced from the documents that remained after being examined during the adversarial process .   When an appeal is lodged against a warrant authorizing search and seizure operations on the premises of three undertakings by only one of them, the court must, where necessary, limit the scope of the annulment to that party . 

Since the transposition of the ECN+ Directive into French law, the Competition Authority and the Minister of the Economy may appeal against an order refusing authorization within ten days of service of the order. The appeal does not have suspensive effect. Conversely, when an appeal is filed against an authorization for a warrant (authorization order), the Minister of the Economy or the Competition Authority, as the case may be, are granted the status of party to the proceedings, as well as the right to appeal against the order issued by the Court of Appeal .

Appeals against the conduct of search and seizure operations must be lodged with the presiding judge of the Court of Appeal having jurisdiction over the court having authorized them. The criminal chamber of the Court of Cassation has held that the fact that the appeal against the inspection operations is brought before the same judge as the appeal against the warrant authorizing the inspection does not infringe the principle of a fair trial. Nevertheless, the undertaking is not entitled, in challenging the conduct of search and seizures, to raise the validity of the warrant having authorized them Moreover, when an appeal is pending against the legality of the warrant, the appeal relating to the conduct of the operations must be stayed.

Since the  ordinance transposing the ECN+ Directive, the Minister of the Economy and the Competition Authority have also been granted the status of defendants in appeals against the conduct of inspections as well as the right to appeal, where necessary, against the order of the Court of Appeal.

Appeals against authorizations for search warrants or the conduct of operations may be lodged with the presiding judge of the Court of Appeal, in accordance with the rules laid down in the Code of Criminal Procedure, by filing a declaration with the clerk of the court registry .

The deadline for appeal is ten days from notification of the order or the provision or receipt of the minutes and the inventory .  In principle, only the persons named in the search warrant can file appeal against it . However, persons who were not subject to the search or seizure but who are subsequently implicated by documents seized during the raid may also appeal against the latter from the date on which they became aware of them, and no later than the date of the Statement of Objections provided for in Article L. 463-2 . The Paris Court of Appeal considers that the Competition Authority does not violate the right to an effective remedy by not notifying an undertaking of the seizure of documents concerning it on the premises of another undertaking, provided that it has not been implicated in the proceedings .

The court with jurisdiction to hear appeals against both the initial warrant and the supplementary order issued on a letter rogatory is the presiding judge of the court in whose jurisdiction the initial warrant was issued . However, the first president of the Court of Appeal can only hear appeals against the warrant: appeals against a decision ruling on a motion to revoke a warrant  or a petition for the disclosure of documents submitted by the undertaking to verify the validity of a search and seizure warrant do not fall within its jurisdiction.

The appeal does not operate as a stay on proceedings and the Competition Authority is not obliged to defer its ruling. Indeed, the fact that the Authority is not competent to assess the validity of an authorization for inspection, does not in any way impose that it must wait for the final outcome of the dispute before the Court of Cassation before it may rule on the complaints against the appellants . 

If the presiding judge of the  Court of Appeal finds that the warrant is invalid, it cannot simply annul it but must also examine the documents produced and rule on the merits of the application . The annulment of the order for authorization can produce several effects. Firstly, it leads to the annulment of proceedings based purely on the decision to authorize home searches . The annulment in fact puts the parties and the grounds back to where they were before the annulled decision; the annulment concerns everything resulting from the irregular provisions in question or their execution . Second, any unlawfully seized documents, any reports or minutes referring either directly or indirectly to them, and passages from the administrative report and the Statement of Objections written with reference to those documents must be struck out from the procedure before the Competition Authority .

An appeal to the Court of Cassation against the order of the first president must be lodged within five days . The appeal must comply with the rules of the Code of Criminal Procedure .  It may be lodged by the rapporteur général, as well as by any party to the proceedings that gave rise to the contested decision, when the latter contains provisions that adversely affect them .  An appeal brought by the rapporteur général more than five clear days after the judgment was issued is inadmissible if he or she was present or represented at the hearing at which the parties were notified of the date of the judgment .

Cass. crim., 19 October 2021, LawLex202100005687JBJ.

Cass. crim., 16 June 2021, LawLex202100003852JBJ.

Cass. crim., 4 May 2011, LawLex201100000977JBJ; 16 June 2011, LawLex201100001275JBJ.

Cass. crim., 28 June 2017, LawLex201700001167JBJ, which specifies that the execution of a search and seizure operation authorized by the judge of freedoms and detention, carried out under the supervision of the judge and whose progress gives rise to a judicial appeal, is not subject to the rules defined by the amended law of 17 July 1978 relating to data processing, files and liberties.

CA Paris, 21 November 1997, LawLex200200002794JBJ, on appeal against Competition Council decision No 96-D-65 of 30 October 1996.

Cass. crim., 27 February 2013, LawLex201300000266JBJ.

Cass. crim., 18 December 2019, LawLex201900001590JBJ, for an order issued on the basis of anonymous non-corroborated statements.

Cass. crim., 30 September 1991, LawLex200200002694JBJ.

Competition Council decision No 90-D-44 of 20 November 1990, LawLex200200002542JBJ; See also CA Papeete, 4 December 2019, LawLex201900001515JBJ, emphasizing that an authorization adopted in violation of the adversarial principle must be annulled and the corresponding operations invalidated, with a subsequent prohibition on the Competition Authority using the procès-verbal or the seized documents; CA Paris, 7 October 2020, LawLex202000002236JBJ.

The time-limit runs from the time the judgment is handed down, not from the time it is notified: Cass. crim., 19 December 2012, LawLex201300000036JBJ.

Cass. com., 9 December 2014, LawLex201400001456JBJ.

Cass. crim., 16 June 2011, LawLex201100001060JBJ.

Cass. crim., 11 August 2021, LawLex202100004986JBJ.

Cass. crim., 11 January 2012, LawLex201200000071JBJ.

Commercial Code, Art. L. 450-4, para. 6, in its wording resulting from Ordinance No 2021-649 of 26 May 2021.

The declaration to the court clerk's office, signed by the clerk and the applicant or his or her lawyer, as stipulated in the Code of Criminal Procedure to which Article L. 450-4 refers, constitutes a substantive public policy requirement that cannot be replaced by a registered letter with acknowledgment of receipt: CA Paris, 15 May 2012, LawLex201200000762JBJ. The filing must be made at the clerk's office of the judicial court (tribunal judiciaire) that issued the order: CA Pau, 23 April 2013, LawLex201300000809JBJ. An appeal against an order authorizing a search and seizure filed using the RPVA network (secure computer network of the legal profession) and not by a statement made at the clerk's office is also inadmissible, CA Saint-Denis, 13 July 2021, LawLex202100004989JBJ.

CA Saint-Denis, 13 July 2021, LawLex202100004989JBJ, emphasizing that an appeal against a search and seizure lodged more than ten days after the provisional minutes (procès-verbal de saisie provisoire) have been delivered or received, must be declared inadmissible even if a final report has been drawn up subsequently.

Cass. com., 2 November 2011, LawLex201100001717JBJ, upholding CA Paris, 29 June 2010, LawLex201000000779JBJL.

However, this remedy cannot be a voluntary intervention in the proceedings initiated by the raided undertakings , CA Paris, 15 May 2019,  LawLex201900000661JBJ.

CA Paris, 8 November 2017, LawLex201700001852JBJ.

CA Aix-en-Provence, 15 January 2015, LawLex201500000083JBJ; CA Poitiers, 19 December 2017, LawLex201800000055JBJ.

421. Monitoring the procedure for irregularities