COMPETITION • FRENCH LAW • PROCEDURE
Under Article L. 463-1 of the Commercial Code, the investigation and the proceedings before the Competition Authority are fully adversarial. The adversarial nature of the proceedings is ensured by the possibility of consulting the whole file at the premises of the Competition Authority. The right of access can only be exercised after the Statement of Objections, which constitutes the formal charge.
The documents on which the rapporteur relies to establish the objections and those containing the observations of the parties concerned must be attached to the report pursuant to Article L. 463-2 of the Commercial Code. However, the absence of a document essential to the proof of the objections in an appendix to the report does not infringe the rights of the defense when the applicant, by virtue of his or her position, was clearly aware of it. Moreover, there is no provision requiring that the oral report of the rapporteur and that of the rapporteur général be pre-drafted in writing and be communicated to the parties.
The parties also have the right of access to the file during the in-depth investigation procedure: the Court of Cassation recognizes that persons subject to home inspections must have access to the documents produced by the Administration in support of an application for a search and seizure warrant. This right of access applies to all documents, including those covered by business secrecy or anonymity, as long as the Administration produces them in support of its request for a warrant and the order grants this request by referring to and explaining the documents. This right, legally conferred on the parties, cannot be contested; the material organization of the disclosure of these documents is a measure of judicial administration that does not fall within the scope of the procedure instituted by Article L. 450-4. Consequently, the judge having authorized the investigation cannot, without exceeding his powers, reject a request for disclosure of documents produced by the Administration in support of its request for a search warrant. However, when these documents are not included in the file deposited at the Court of Cassation registry, it is for the parties to give formal notice to the Administration having obtained the authorization to communicate these documents to them.
