Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
Global Competition Law also provides insight into possible future developments in the field.

Global Competition Law

The civil aspects resulting from competition law infringements may be brought before a commercial or civil court. Depending on the provision infringed, the jurisdiction of the courts can be either exclusive, or concurrent with that of the Competition Authority. Under Article L. 420-7 only specialized courts may hear claims relating to anticompetitive practices. In application of Article R. 420-3,  …

Enforcement by ordinary courts

Cases involving the infringement of the provisions on anticompetitive practices may be referred by the Minister of the Economy, interested undertakings or professional and consumer advocacy groups to the Competition Authority for investigation. The Authority also may initiate proceedings sua sponte.

The right to order an investigation based on suspicions or complaints belongs to the Competition Authority, the Minister of the Economy and/or the Director of the DGCCRF (Directorate General of Competition, Consumer Affairs and the Repression of Fraud), who have the discretionary power to initiate an investigation. The investigating officers may have access to the premises or other locations, request the transmission of accounts, invoices and all other professional documents and make a copy of them, by any means, and collect, either by way of summons or on the spot, information and evidence. Without prejudice to professional secrecy, the investigators have access to any documentation or information held by government or local authorities' services.

Search and seizure activities must be authorized by an order of the juge des libertés et de la detention [liberties and custody judge] of the Tribunal judiciaire having jurisdiction where the premises to be visited are located. Search and seizures may only be ordered upon request of the Minister of the Economy or of the rapporteur général to the Competition Authority (Article L. 450-4 CC).

Complaints and investigations

The investigatory phase is conducted by the rapporteur général of the Competition Authority. After the issuing of a Statement of Objections, the parties have a two-month time-limit to submit their comments. The report of the Authority, which is an objective statement or evaluation of competition issues involved, is then notified to the parties, to the Government Commissioner and to the ministers concerned. The parties must submit their answer within two months.

For cases of minor importance, the rapporteur général of the Authority may decide to initiate a simplified procedure, after the issuing of the Statement of Objections but without the submission of a report (Article L. 463-3 CC). On the contrary, if the Authority believes that the facts alleged do not fall within the scope of its jurisdiction or that the evidence is not sufficient, it may declare in a reasoned report, that the action is rejected. When the Authority believes that the facts justify the application of criminal sanctions, it refers the case to the public prosecutor. However, this rarely occurs in practice.

Article L. 464-2, I, of the Commercial Code gives undertakings the faculty to offer commitments in order to put an end to the competition concerns. The undertaking which agrees to the commitments procedure does not have to admit having committed anticompetitive practices. Serious restrictive agreements such as cartels and certain abuses of dominance are usually excluded from the commitments procedure. In effect, the commitments procedure does not cover cases where the breach of the economic public order requires the imposition of a pecuniary sanction.

Furthermore, the 2015 Macron Law substituted a settlement procedure for the previously applicable non-contestation of objections procedure provided for by Article L. 464-2, III CC. As previously, the undertaking or organization must not dispute the reality of the objections notified and may also undertake to modify its behavior in the future. However, compared to the former procedure, a settlement brings more certainty to the undertakings as the range of the possible fine is determined in the agreement with the rapporteur général and may not be exceeded by the Plenum of the Authority. This procedure differs from that of Article L. 464-2, I, which gives the parties the opportunity to submit commitments to the Competition Authority before the Statement of Objections has been notified to them.

Proceedings before the Competition Authority

 During the proceedings, the Competition Authority may issue interim injunctive relief, if the practices seriously and immediately harm the economy, the sector concerned, consumer interests or the interests of the plaintiff. However, it is not bound by the measures requested by the plaintiffs and may order any measure that it deems necessary (Art. L. 464-1 CC). In the matter of unfair practices, the judge may also order interim relief (L. 442-4 CC).

Interim relief

The civil aspects resulting from competition law infringements may be brought before a commercial or civil court. Depending on the provision infringed, the jurisdiction of the courts can be either exclusive, or concurrent with that of the Competition Authority. Under Article L. 420-7 only specialized courts may hear claims relating to anticompetitive practices. In application of Article R. 420-3, the commercial or judiciaire courts in Marseille, Bordeaux, Lille, Fort-de-France, Lyon, Nancy, Paris and Rennes became the only courts with jurisdiction to hear, respectively proceedings relating to traders or artisans or other persons. In all cases the Paris Court of Appeal is the relevant appellate court. Article L. 490-9 of the Commercial Code gives full jurisdiction to the national courts to apply the European competition rules. Only the court may decide that a contract is void. The Competition Authority is not competent in such a case. Nullity may be total or in part.

Anticompetitive practices may also be the subject of an action for damages before the courts. The conditions of exercise of such actions can be found in Articles L. 481-1 CC et seq. and R. 481-1 et seq. CC, introduced on 9 March 2017 by an Ordinance and a Decree transposing EU Directive No 2014/104 on damages actions for competition law infringements. Under Article L. 481-1, any infringement of EU or national competition laws constitutes a fault. Therefore, the action is not limited to  breaches of Articles L. 420-1 and L. 420-2, 1° but may extend, inter alia, to abuses of economic dependence. Pursuant to Article L. 481-2, final decisions of the Competition Authority finding an infringement constitute undisputable proof of said infringement, whereas previously national courts were not bound by such findings; the same is true for Commission decisions. Similar decisions by competition authorities of other Member States will only consitute prima facie evidence of the infringement. Article L. 481-3 provides that compensation must cover, in particular, actual loss, loss of profit, loss of opportunity and non-material loss. Whereas previously the buyer had to establish that it did not pass-on the overcharge resulting from the infringement to its customers, it now benefits from a rebuttable presumption that it did not (Article L. 481-4). Indirect buyers also benefit from a rebuttable presumption that the overcharge has been passed-on to them where they are able to show that the defendent infringed competition law, that the infringement led to an overcharge for the direct buyer and that they bought the goods concerned by the infringement. In addition, whereas previous judgments deemed that harm necessarily arises from an abuse of dominant position, Article L. 481-7 now reserves said presumption to cartels. Article L. 483-1 et seq. contain the rules relating to the disclosure of evidence. Access to certain documents contained in the Competition Authority's file may only be granted where the proceedings are closed by a decision of the Authority whereas leniency statements and settlement agreements may never be disclosed. Under Article L. 481-9, all the undertakings which participated in the infringement may be held jointly and severally liable. This does not however extend to SMES and leniency recipients, who under certain conditions benefit from more limited liability, i.e. only vis-à-vis their direct or indirect purchasers. Finally, Article L. 482-1 establishes a five year limitation period for bringing competition damages claims before the courts. The limitation period may however be suspended by the opening of an investigation or proceedings by the Competition Authority. 

Furthermore, after thirty years of debate and fruitless attempts to introduce class actions into French law, the latter have finally become a reality under the Hamon Law of 17 March 2014 which has made collective “private enforcement” possible under competition law for the reparation of harm to consumers caused by anticompetitive practices (Art. L. 623-1 of the Consumer Code). Class actions may only be brought by consumer associations, while SMEs, often the primary victims of anticompetitive practices in their capacity as intermediary operators, will not be able to bring such suits.

If the court considers that an application is founded and that the trader's liability is incurred, it determines the reparable injury for each consumer or category of consumers in the class it has defined and renders an initial judgment ordering the measures required to inform consumers potentially able to claim of the decision. Those persons must then declare their intention to join the suit (opt-in) within a period fixed by the court from two  to six months. Those consumers are compensated by the liable undertaking and in the event of difficulties the court will issue a separate ruling.  

Article L. 623-24 of the Consumer Code states that “When the alleged breaches by the trader relate to compliance with the rules defined in Title II of Book IV of the Commercial Code  or Articles 101 and 102 of the Treaty on the Functioning of the European Union, the trader shall only be held liable in respect of the action referred to in Article L. 423-1 on the basis of a decision, handed down against the trader by the relevant national or European authorities or courts, which establishes the breaches and which is no longer subject to appeal for the party in respect of the establishment of the breaches”. 

The legislator has thus adopted the “follow-on” approach: if an undertaking has been found guilty of conduct by a national competition authority (NCA) or by the European Commission relative to an infringement of competition law, the facts are deemed to be irrefutably established in terms of its liability in the class action. However, this does not rule out all possibility of filing an initial claim with the courts rather than the Competition Authority in order to obtain a judgment finding an infringement of competition law which can be relied upon in a subsequent class action.  

Global Competition Law

282. Enforcement by ordinary courts

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Les notions juridiques connexes

282. Enforcement by ordinary courts

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Les notions juridiques connexes

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