COMPETITION • FRENCH LAW • RESTRICTIVE PRACTICES
In addition to the discontinuation of the practices, the voiding of unlawful terms or contracts, the recovery of undue payments and compensation for losses suffered, Article L. 442-4, I (former Article L. 442-6, III) of the Commercial Code allows the Minister of the Economy to ask the court to impose a civil fine on the offender. The amount of the fine, which has been regularly increased through the various reforms of the law, can now reach the highest of the following three amounts: EUR 5 million, three times the amount of the unduly received or obtained advantages, or 5% of sales (excluding taxes) made in France by the perpetrator of the practices during the last financial year since the financial year preceding the one in which the practices were carried out. In addition, the court, which until now has only had the option of issuing a penalty, must now systematically order the publication, dissemination or posting of its decision and, where appropriate, impose a periodic penalty.
A civil fine is not the same as a criminal sanction: observance of the principles of legality or of the individual nature of penalties is not binding on the court and therefore does not prevent the civil fine from being incurred by the legal entity having absorbed the offending undertaking. The amount of the fine can be exemplary and does not necessarily have to be proportionate to the harm suffered since its purpose is not to repair a harm, but to restore economic public order. Nevertheless, the trial courts, with the approval of the Court of Cassation, seem to be moving towards aligning the criteria for setting the amount of the civil fine with those of fines for anticompetitive practices. The court should thus take into account not only the need to ensure that the civil fine is sufficiently dissuasive, but also the seriousness of the conduct in question, the resulting damage to the economy and the individual situation of the defendant undertaking.
