The Competition Authority has published its procedural notice on the settlement procedure.
Long awaited since the previous notice on the procedure for the non-contestation of objections was declared obsolete, the Procedural Notice of 21 December 2018 codifies the decision-making practice of the last two years on settlements.
Although the new notice clarifies the rules on settlements, which, apart from a few differences, related to the transposition of the Damages Directive into domestic law, follow the same regime as the no-contest rules, it nevertheless gives rise to question, even criticism on two points ….
Firstly, regarding the scope of the settlement procedure that the notice expressly limits to “infringements of the competition rules provided for by Articles L. 410-3, L. 420-1 to L. 420-2- 2 and L. 420-5 of the Commercial Code and Articles 101 and 102 of the Treaty on the Functioning of the European Union”: should it therefore be assumed that the procedure under Article L. 464-2, III, of the Commercial Code is no longer applicable to merger control even though it was in the past (see Altice decision, Competition Authority decision No 16-D-24 of 8 November 2016)?
The notice also ignores the procedural safeguards to be respected in the settlement procedure, which has already been criticized for lack of clarity. This absence is all the more remarkable as the previous no-contest notice guaranteed the respect of the adversarial principle in investigation proceedings and Authority hearings. Several procedures that have given rise to settlements are currently the subject of litigation before the Court of Appeal and the Court of Cassation: one can only hope that the case law will mitigate the shortcomings of the administrative doctrine by providing more transparency and better guarantees for undertakings ….