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

Appeals from the Competition Authority to the Paris Court of Appeal do not act as a stay on the Authority's decision, since the Competition Authority's decision is immediately enforceable . However, the President of the Court may order a stay of enforcement of the decision if it is likely to entail manifestly excessive consequences, or if new facts of exceptional severity have arisen subsequent to …

Stay of enforcement

Appeals from the Competition Authority to the Paris Court of Appeal do not act as a stay on the Authority's decision, since the Competition Authority's decision is immediately enforceable . However, the President of the Court may order a stay of enforcement of the decision if it is likely to entail manifestly excessive consequences, or if new facts of exceptional severity have arisen subsequent to its notification . The request is made by summons to the President of the Court of Appeal, in accordance with Article 485, paragraph 2 of the Code of Civil Procedure (hearing at the time indicated, even on public holidays). On pain of invalidity, the summons includes the information required for acts of the judicial commissioner (in particular: date; surname, first names, place of residence, nationality and date of birth of the claimant natural person; form, name, registered office and legal representative of the claimant legal entity), and a statement of the grounds on which the claim is based. It also specifies the date on which the appeal against the decision whose stay of execution is requested was lodged. Since Decree No 2017-823 of 5 May 2017, the summons must be delivered to the Competition Authority and the Minister of the Economy , failing which it will be automatically declared null and void. On the other hand, the applicant for a stay of enforcement of a Competition Authority decision is not required to call the plaintiff undertaking to the case , so the latter's voluntary intervention in the proceedings is inadmissible .

A stay of enforcement can only be requested against a decision imposing an injunction or a financial penalty pursuant to Article L. 464-2 . The application may not lead the court to assess the legality of the Competition Authority's application of substantive rules such as the imputability of the sanction to the parent company . In order to obtain a stay of execution, the sanction must be of such a nature as to seriously and durably, if not irreversibly, alter the operation of the undertaking, thereby jeopardizing the maintenance of employment . Stays of enforcement, which can be only partial, have been granted for undertakings whose financial situation did not allow them to pay the fine without endangering their very survival , to give an undertaking the time it needs to organize and develop a new commercial policy for its products, without major, definitive and irreversible risks of disruption ,  to avoid jeaopardizing the continued operation of the undertaking in question, which has been loss-making for several years, or which has had to close a plant, reduce its workforce by half, is registered with the Banque de France following incidents involving the payment of bills of exchange, or which is having difficulty honoring suppliers and rapidly obtaining repayment of overdrawn current accounts from subsidiaries which are themselves in difficulty, and which owes its survival solely to the repeated and significant advances granted by its parent company . This is also the case when the amount of the fine represents more than 70% of the annual income of the association in question, which is already facing economic difficulties that have led to loans being refused by its bank, and payment of which would be likely to result in the departure of its members, at the risk of jeopardizing its existence . A stay of enforcement is also required when compliance with the Competition Authority's injunctions would require the manufacturer to carry out a thorough reorganization of its distribution, incurring substantial costs and investments, with significant repercussions for the entire European network . The publication of a decision by the Authority has been deferred in order to avoid confusion in the legal relations between operators in the sector concerned, in the event of annulment or reversal .

The petitioner must clearly demonstrate it will suffer the excessive harm it is claiming . Mere allegations are insufficient: the undertaking must provide concrete, quantified proof of the obvious excesses that compliance with the injunctions would actually entail . This is not the case when a financially sound company claims that payment of the fine will irreversibly jeopardize its development by delaying transactions to purchase or relook its sales outlets . However, an undertaking that has not claimed financial difficulties during the proceedings leading to the imposition of the fine does not forfeit the right to submit a subsequent application for a stay of enforcement . Furthermore, in order to justify that a stay of enforcement is likely to have manifestly excessive consequences, the undertaking need not establish that it has applied to the public accountant for a deferment of payment . The excessive consequences likely to result from the application of a financial penalty must be assessed in relation to consolidated sales, when the undertaking concerned belongs to a group of companies . More generally, the fact that the sanctioned legal entity belongs to a group of companies is a factor which the court must take into account when assessing whether the immediate enforcement of the decision is likely, in the circumstances of the case, to entail manifestly excessive consequences . However, since there is no need to distinguish where the law does not, the CA Paris Court of Appeal has stressed that the “manifestly excessive consequences” referred to in Article L. 464-8 do not necessarily have to be strictly financial in nature: harm to image may in itself justify a stay of enforcement . A stay could also be imposed in the event of a serious procedural irregularity. This was the case when the indeterminate nature of the injunction issued to the parties as to the Competition Authority's precise expectations, and the legal uncertainty it created for those to whom it was addressed, were likely to lead to manifestly excessive consequences . On the other hand, the Competition Authority's failure to take the undertaking's ability to pay into account could not be assimilated to a serious procedural irregularity capable of justifying a stay of enforcement of the decision . More recently, the Paris Court of Appeal has distanced itself from these solutions: it now considers that neither the allegedly excessive or exorbitant nature of the financial penalty imposed, nor any manifest procedural irregularities, the assessment of which falls within the remit of the trial court, are likely to entail “manifestly excessive consequences” .

The condition relating to new facts of exceptional severity - another hypothesis covered by Article L. 464-8 - is strictly interpreted by case law. Such events must be totally unforeseeable and specific to the undertaking concerned . A decline in cash flow due to a change in the characteristics of the company's sector of activity , or the unforeseeable duration of the proceedings and the uncertainty of their outcome  do not constitute facts of exceptional severity. On the other hand, the worsening, as a result of the Covid-19 crisis, of the already deteriorated financial situation of the undertaking requesting the stay of enforcement, was considered a new fact of exceptional severity, justifying the stay of enforcement of the decision .

CA Paris 23 September 2008, LawLex200800002219JBJ; see also CA Paris 26 June 2012, LawLex201200000970JBJ and LawLex201200000953JBJ, holding that the immediate payment of fines is likely to lead to manifestly excessive consequences when it exposes the undertaking to a cessation of payments.

CA Paris, 24 July 2024, LawLex202400005577JBJ.

CA Paris, 23 January 2019, LawLex201900000085JBJ.

CA Paris, 17 May 1991, LawLex200200002587JBJ.

CA Paris, 24 February 1995, LawLex200200002586JBJ: indisputable and verified accounting documents; 26 June 1996, BOCC, 20 August 1996, 407: letter from the bank revoking cash credit or refusing all guarantees.

CA Paris, 9 October 1990, LawLex200002719JBJ, inadequacy of a mere allegation of poor financial results and the proximity of the review date; 24 February 1993, LawLex200002790JBJ, the simple impossibility of putting an end to a disputed commercial practice is not sufficient to justify a stay of enforcement.

CA Paris, 27 January 2011, LawLex201100000090JBJ.

CA Paris, 3 July 2012, LawLex201200001843JBJ.

C Paris, 13 November 2012, LawLex201200002379JBJ.

Prior to the decree, Article R. 464-24 penalized failure to comply with this formality by making the application inadmissible. The provision also stipulated that the summons had to be issued to all parties involved before the Competition Authority, but this has been abolished by the decree.

Cass. com., 22 October 2013, LawLex201300001529JBJ.

CA Paris, 16 October 2019, LawLex201900001224JBJ.

CA Paris, 1 July 2020, LawLex202000001690JBJ, LawLex202000001695JBJ, LawLex202000001696JBJ, LawLex202000001697JBJ, LawLex202000001718JBJ, cited above.

CA Paris, 26 June 2012, LawLex201200000953JBJ, above.

CA Paris, 3 April 2001, LawLex200200002389JBJ, rejecting the stay of enforcement based on a plea already raised in the brief submitted to the Competition Authority.

CA Paris, 26 June 1996, LawLex200200002766JBJ.

CA Paris, 24 February 1995, LawLex200200002586JBJ.

CA Paris, 1 July 2020, LawLex202000001690JBJ, cited above.

CA Paris, 1 July 2020, LawLex202000001690JBJ, LawLex202000001695JBJ, LawLex202000001696JBJ, LawLex202000001697JBJ, LawLex202000001718JBJ.

CA Paris, 6 March 1991, LawLex200200003378JBJ; 13 March 1991, ruling out the stay of enforcement of a fine imposed for failure to comply with an injunction; CA Paris, 4 March 2009, LawLex2010000470JBJ, granting a stay of execution of the decision ordering the publication in general newspapers of a summary confusing the identity of the companies condemned and the extent of the sentence.

CA Paris, 22 January 2020, LawLex202000000100JBJ.

CA Paris, 20 December 1990, LawLex200200002589JBJ; CA Paris, 3 July 2012, LawLex200200001843JBJ, which considers that a financial penalty, which represents nearly 40% of the undertaking's sales and nearly eight times its shareholders' equity despite the fact that its net income is in deficit, can only be maintained at one-fifth of its amount, failing which the consequences would be manifestly excessive.

CA Paris, 20 December 1990, LawLex200002589JBJ; 24 February 1995, LawLex200002586JBJ; CA Paris, 26 June 1996, LawLex200002588JBJ, ; CA Paris, 9 August 2002, LawLex200006235JBJ, for a case where payment was likely to cause the undertaking to file for bankruptcy and have external repercussions in the employment area concerned.

CA Paris, 11 August 1987, LawLex200200001882JBJ.

French Competition Law

492. Stay of enforcement

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492. Stay of enforcement

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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