COMPETITION • FRENCH LAW • PROCEDURE
Appeals against the decisions of the Competition Authority are, on penalty of inadmissibility, brought before the Paris Court of Appeal by a written statement in triplicate filed with the court clerk’s office in return for a receipt. The notice must state the subject of the appeal. Decree No 2017-823 of 5 May 2017 specifies that the appellant must append, if applicable, the part of the decision to which the application for review relates. The appellant is also required to attach a copy of the Authority’s decision to the notice. Finally, the notice of appeal must include a statement of the grounds of appeal. The applicant must, file this statement with the clerk’s office within two months following notification of the Competition Authority’s decision failing which it will be automatically declared to have lapsed.
A cross-appeal (recours incident) may be filed even though the claimant is barred from bringing an appeal as a principal claimant. The admissibility of the cross-appeal is subject to that of the main appeal and, since the Decree of 5 May 2017, to compliance with the one-month time-limit after receipt of the notification of the written observations of the main appellant and the list of exhibits and supporting documents produced, which significantly extends the time-limit for appeal, previously set at one month from receipt of the notification of the notice of appeal. It is subject to the same formalities as the main appeal and must be disclosed to the parties before the Court of Appeal and to the Minister of the Economy when the latter is not a party to the proceedings.
Only an appeal for annulment or reversal may be filed against Competition Authority decisions before the Paris Court of Appeal. In order to organize and streamline the appeal procedure against Competition Authority decisions, the Decree of 5 May 2017 imposes on the parties assisted or represented by a lawyer the obligation to structure their submissions and to summarize in their final pleadings their claims and arguments. Thus, pursuant to new Article R. 464-25-1 of the Commercial Code, they must expressly state their claims and the factual and legal grounds on which each is based, indicating for each claim the documents relied upon and their numbering. A list of the documents supporting these claims must be attached to their written observations. The written observations must include a separate statement of the facts and the procedure, a description of the claims and arguments, and an operative part summarizing the claims.
Any pleas in law which were not raised in the previous pleadings must be presented in a formally distinct manner. The Court of Appeal or its president only rules on the claims set out in the operative part and only examines the pleas in support of these claims if they are invoked in the proceedings. Finally, the parties are required to repeat, in their last written submissions, the claims and pleas previously presented or invoked in their previous written submissions. If they fail to do so, they are deemed to have abandoned them and the court of appeal or its president will only rule on the last written submissions.
The deadline for appealing a Competition Authority decision is one month from that decision being formally notified. Only directly involved parties, the Minister of the Economy or the Competition Authority may bring an appeal before the Paris Court of Appeal (Article 464-8(1). If the appeal is likely to affect the rights of a person other than those directly implicated in the Authority proceedings, such parties may be required by the Court of Appeal President to be party to the action, whether they wish to or not. Third parties are notified of their addition to the proceedings by way of registered letter with acknowledgment of receipt.
Pursuant to Article R. 464-11 of the Commercial Code, the Competition Authority is party to the proceedings and is represented by the president of the Authority (Art. R. 461-1 Commercial Code). It has standing to act both as claimant and defendant and to present observations in any court. The Authority must be able to, inter alia, enter pleadings relative to the scope of a decision of the European Court of Human Rights declaring the transitional scheme for actions contesting warrants for search and seizure operations incompatible with the ECHR. It can also give oral testimony at the hearing before the Court of Appeal at its own request or at the request of the president of the Court of Appeal (Art. R. 464-19)
Where not a party to the proceedings, the Minister of the Economy may present oral observations at the hearing at his or her own instigation or that of the president or the court (Art. R. 464-19 Commercial Code). He may also submit written observations under the same conditions (Art. R. 464-21 Commercial Code). The role of the Public Prosecutor’s Office is performed by the Public Prosecutor at the Paris Court of Appeal. He may consider cases in which he deems it necessary to intervene (Art. R. 464-27 ).
People whose legal situations may be affected by the appeal and who are not officially party to the action may voluntarily decide to join their name to the action. To do so, they must register a written declaration with the Court Clerk justifying their request within one month of having been legally informed of the appeal. Since entry into force of the Decree of 5 May 2017, the party joining the appeal must notify the parties before the appeal court and the Minister of the Economy if the latter is not a party to the proceedings. The intervening party must also file the documents listed in the first and second paragraphs of Article R. 464-15 with the court clerk’s office within two months of being notified by the principal applicant, failing which the intervention will be judged inadmissible ex officio. Under the same conditions, within the same time limit and in the same manner, it must send a copy of its written observations and the list of supporting documents it intends to produce to the parties before the Court of Appeal and to the Minister of the Economy when he is not a party to the proceedings, and provide proof of this notification to the court registry by registered letter with acknowledgement of receipt. It must also send the Competition Authority and the Minister of the Economy, where he is not a party to the proceedings, a copy of the exhibits and supporting documents produced. Finally, the text provides that requests for communication or production of documents or categories of documents submitted by the intervening party for the purposes of an action for damages are governed by the provisions of Articles L. 483-1, paragraph 2, and L. 483-4 to L. 483-11.
The president of the Court of Appeal or his delegate sets the deadlines within which the parties to the proceedings must submit their written observations to each other, send them to the Minister of the Economy when he is not a party to the proceedings and file a copy of them at the registry. When he is not a party to the proceedings, the Minister of the Economy may submit written observations within the time-limits set by the first president of the Court of Appeal or his delegate. The latter also sets the date of the hearing. These deadlines are notified to the parties and to the Minister, when he is not a party to the proceedings, by the court clerk’s office, which also convenes them to the hearing by registered letter with acknowledgement of receipt (Art. R. 464-18, para. 3, Commercial Code).
The Court of Appeal may reverse or annul any Competition Authority decision. The review by the Court of Appeal in appeals for the striking out of the initial decision is similar to that in cases of an action for ultra vires before an administrative court. In particular, the Court looks to see whether the Authority has gone beyond its jurisdiction in a given area, whether it has complied with the European Convention on Human Rights, the procedural rules set out in the Commercial Code, and whether it has respected the rights of the defense. The Court also examines whether the Authority has made an error in law in its interpretation of Articles L. 420-1, L. 420-2, L. 420-2 and L. 420-5 or Articles 101 and 102 TFEU, or a manifest error in evaluating the facts, especially where it imposes a fine.
The Court can annul the decision in its entirety and terminate the proceedings if the cause of annulment affects the entire case, irreparably affects the rights of the defense, or involves the expunging of all evidence from the file. If this is not the case, the Court will rule on the facts and law anew. It then has several options: either it refers the case back to the Authority to resume the proceedings and issue a decision; or it rules again on the basis of the case as is and its ruling replaces that of the Authority; or it rules again, but first requests an expert opinion. A partial annulment is also possible.
