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's decision imposing a financial penalty must state the reasons for the decision . It must specify the elements used to determine the amount of the fine , and thus specify the turnover referred to . When the Authority classifies undertakings into several categories for the purpose of determining fines, the reasons must enable them to understand the criteria it relied on to …

Principles

The Competition Authority's decision imposing a financial penalty must state the reasons for the decision . It must specify the elements used to determine the amount of the fine , and thus specify the turnover referred to . When the Authority classifies undertakings into several categories for the purpose of determining fines, the reasons must enable them to understand the criteria it relied on to fix those categories . The fact that the Authority's decision devotes only a small number of paragraphs to determining the amount of the fine does not mean that it is insufficiently reasoned, given that it concerns a case of obstruction, for which there are no guidelines for calculating the applicable lump sum, and that the decision sets out all the factors that made it possible to calculate the proportionality of the penalty in accordance with the legal criteria .

In assessing the proportionality of the sanction, the supervisory authorities use a multi-criteria analysis  which takes into account, in particular, the severity of the facts complained of, the degree of involvement of the undertaking concerned and the impact of the restrictive agreement on the market, its financial situation and its size. The Competition Authority does not infringe the principle of proportionality when it does not amend the sanction following the annulment of a grievance, as long as the annulment has no impact on the number, the anticompetitive nature or the seriousness of the charges . It may also impose a single sanction for several infringements, despite their different duration and seriousness, or the resulting damage, taking into account the similarity or interconnection of the sectors or markets in question and the overall object of the practices . On the other hand, it cannot, without violating the principle of proportionality, apply the same rate of increase in the amount of the fine to two undertakings on account of their belonging to corporate groups when the size and economic power of the latter are not comparable . Similarly, the Competition Authority must reduce the rate of the value of sales where part of the infringement period was marked by price regulation that may have justified joint price fixing between competing undertakings .

Moreover, Article L. 464-2 of the Commercial Code stipulates that financial sanctions are determined individually for each undertaking or organization sanctioned, and that reasons are given for each sanction. The requirement for individualization means that only the difficulties encountered individually by the undertakings in question are taken into account in calculating the fine , and not those experienced by all operators in the sector, such as the consequences of the Covid crisis . Similarly, it prevents an undertaking contesting the amount of the fine imposed on it from referring to the Competition Authority's previous decision-making practice  or to the fines imposed on other undertakings involved in the infringement . Conversely, the principle of individualization prohibits the Authority from applying a uniform fine rate to all undertakings involved  save in exceptional circumstances. 

In calculating fines, the Competition Authority is also bound by the principle of equal treatment, which requires that comparable situations should not be treated differently, and that different situations should not be treated equally, unless such treatment is objectively justified. By virtue of this principle, the Authority may not increase the fine imposed on an undertaking because it belongs to a powerful group by twice the amount it imposed on another undertaking with similar characteristics in the same ruling . On the other hand, this principle does not require the Authority to apply the presumption of a parent company's decisive influence over its subsidiary by virtue of owning almost all of its capital to all the successive parent companies of a company prosecuted for anticompetitive practices, since this is simply a discretionary option . Nor does it require the Competition Authority to align the fine imposed on an undertaking that has not settled with the amount of the settlement reached by the other participants in the infringement . Similarly, it may impose different penalties on a subsidiary of a company that is not experiencing tax difficulties, and on companies owned by individuals and acting independently on the market, provided that they are not in a comparable situation . Furthermore, respect for the principle of equal treatment must be reconciled with the principle of legality, according to which no one may invoke, for his or her own benefit, an illegality committed in favor of another . Lastly, the difference between the method of calculating the abatement granted by the Paris Court of Appeal to the undertakings which obtained the annulment of the Competition Authority's decision and that adopted by the Authority and maintained by the ruling with regard to the undertakings which only requested the overturning of the ruling, without contesting the rate of reduction applied, does not constitute a breach of the principle of equal treatment, since it is the result of different procedural choices made by different undertakings, which have placed them in situations that are not comparable, and which are binding on the courts .

Cass. com., 8 January 2025, LawLex202500000189JBJ, in which the Court held that while notices issued by the Competition Authority are binding on it - unless it explains, in the reasoning of its decision, the specific circumstances or public interest considerations justifying a departure in a given case - they do not have regulatory status. As a result, the Paris Court of Appeal, in exercising its power to amend decisions, is bound only by the criteria set out in Article L. 464-2, I of the Commercial Code and by higher-ranking norms, such as the principles of proportionality and equal treatment.

Cass. com., 10 March 1992, LawLex200200003237JBJ.

Cass. com. 29 March 2011, LawLex201100000708JBJ.

CA Paris, 16 November 2023, LawLex202300013688JBJ, cited above.

CA Paris, 21 December 2023, LawLex202300014903JBJ.

CA Paris, 4 February 2003, LawLex200300001167JBJ; Cass. com., 9 June 2015, LawLex201500000757JBJ.

Competition Council decision No 08-D-06 of 2 April 2008, LawLex200800000357JBJ; CA Paris, 26 January 2012, LawLex201200000135JBJ.

CA Paris, 7 March 2024, LawLex202400002244JBJ.

CA Paris, 3 December 2020, LawLex202000003475JBJ.

CA Paris, 20 December 2018, LawLex201800001990JBJ.

CA Paris, 6 May 2021, LawLex202100002550JBJ.

CA Paris, 4 July 2019, LawLex201900000898JBJ.

CA Paris, 17 January 1991, LawLex200200002639JBJ; 22 April 1992, LawLex200200002878JBJ. Cf. CA Paris, 21 December 2023, LawLex202300014903JBJ, holding that in the specific context of the offense of obstruction, the absence of any reference to the turnover found does not constitute an insufficient statement of reasons, since the Competition Authority has a margin of discretion in determining the amount of the fixed fine, provided that the 1% ceiling set by Article L. 464-2, V of the Commercial Code is respected.

Cass. com. 24 June 2020, LawLex202000001638JBJ.

CA Paris, 19 July 2018, LawLex201800001111JBJ.

Competition Council decision No  92-D-22 of 17 March1992, LawLex200200002443JBJ; CA Paris, 25 January 1994, LawLex200200002863JBJ; 25 March, 1997, LawLex200200002642JBJ; Cass. com., 4 June1996, LawLex200200003030JBJ, recalling the legal status of these criteria.

Cass. com., 12 July 2011, LawLex201100001270JBJ.

Competition Authority decision No 12-D-25 of 18 December 2012, LawLex201200002471JBJ; Cass. com., 22 November 2016, LawLex201600001914JBJ.

CA Paris, 15 March 2018, LawLex201800000551JBJ.

French Competition Law

476. Principles

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476. Principles

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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