COMPETITION • FRENCH LAW • PROCEDURE
Actions before the Competition Authority can be brought by the Minister of the Economy, undertakings, regional or local authorities, professional or labor organizations, approved consumer groups, chambers of agriculture or of trade and commerce, professional organizations, the High Authority for the dissemination of works and the protection of rights on the internet and the presidents of the price, margins and revenue observatories of Guadeloupe, French Guiana, Martinique, Réunion, the department of Mayotte, the islands of Wallis and Futuna and Saint Pierre and Miquelon, where the case touches on matters of interest to these groups. The Competition Authority examines whether the practices fall within the scope of Articles L. 420-1, L. 420-2, L. 420-2-1, L. 420-2-2 or L. 420-5, are contrary to the measures taken pursuant to Article L. 410-3 or can be justified by application of article L. 420-4. It is the role of the Authority to give the alleged conduct a legal characterization, and so it is in no way constrained by the classification given by the parties in the application, even where a governmental body is the complainant. Actions are said to come before the Authority in rem. Consequently, where a number of different applications are brought before it, the Authority can choose to join the matters together.
The Competition Authority may, by reasoned decision, refuse to accept an application on grounds of the applying party’s lack of interest or standing, where the matter is time-barred within the meaning of Article L. 462-7, or where it considers the matter outside its jurisdiction (Art. L. 462-8 Commercial Code). It may also, under the same conditions, close a case which it initiated of its own motion. For the application of this provision, the Rapporteur General (chief case-handler) is authorized to set time-limits for the production of briefs, supporting documents or observations (Art. R. 463-8, Commercial Code). Consequently, the production of documents likely to substantiate the facts may be validly made by a separate transmission of the letter of referral. The Authority notifies the initiator of the referral and the Minister of its decision on the admissibility of the referral (Art. R. 464-8, 2º).
The Rapporteur General appoints one or more agents of the investigation division as rapporteurs (case handlers) for the examination of each case whose role is to compile the evidence both in favor of and against the parties. They may conduct the necessary enquiries necessary to find evidence of the alleged offense (Art. L. 450-1 Commercial Code). At the written request of the Rapporteur General, the Minister of the Economy must, without delay, make available to him the authorized officials required to carry out the heavy investigation operations, for the duration and number indicated.
Upon completion of the investigation, the rapporteur decides whether the matter should proceed to a full hearing before the Authority or not.
After the investigations, the rapporteur has the possibility either to draw up a Statement of Objections or to propose a motion to dismiss the case (non lieu).
In view of the observations submitted by the parties and by the Government Commissioner (Commissaire du Gouvernement) on the Statement of Objections and unless the simplified procedure is implemented, the rapporteur draws up a report, the drafting of which is not subject to any time-limit. It contains a statement of the facts and the charges ultimately brought against the parties concerned, as well as a reminder of the other claims (Commercial Code, Art. R. 463-11). The rapporteur is free to pursue any claim he/she chooses and can thus abandon any claim after the notification of the report without prejudice to the principle of the adversarial process. The report constitutes the investigative report. It is notified to the parties, the Government Commissioner and the ministers concerned (Article L. 463-2). The documents on which the rapporteur has based his report and, where applicable, the parties’ observations are attached to it. The parties have a further two-month period in which to submit a response memorandum, which may be consulted by the interested parties within fifteen days prior to the Authority’s meeting. Interested ministers may submit observations within the same time-limit; this opinion is transmitted to the Authority through the Government Commissioner.
The investigation procedure before the Authority ends with the submissions in response to the report. The Authority then convenes the parties by registered letter with acknowledgement of receipt, at least three weeks before the day of the hearing ( Art. R. 464-6, C. com. Undertakings or organizations that fail to comply with a convocation may be subject to an injunction and a penalty payment of up to 5% of the average daily turnover for each day of delay (Art. L. 464-2, Commercial Code). The sessions of the Competition Authority are not public (Art. L. 463-7): only the parties and the Government Commissioner may attend. The parties are entitled to be heard. They are authorized to be represented or assisted. The Authority may hear any person whose testimony may contribute to its case (Art. L. 463-7, para. 2). Nevertheless, respect for the adversarial process and the rights of the defense implies that the parties or their representatives must be able to obtain, prior to the proceedings, the names and capacity of the witnesses that the Authority intends to examine . Likewise, the parties have the right to ask the Authority, which will assess the appropriateness of such a request, to call other witnesses. The Rapporteur General, or his/her deputies and the Government Commissioner may also submit observations. This power is also granted to the rapporteur who investigated the case under Article R. 464-6 of the Commercial Code. During the hearing, the rapporteurs are not required to reproduce the exact opinion expressed in their report and may modify their assessment of the facts, provided that no element absent from the case file is alleged against the defendants and that the defendants are able to respond in accordance with the adversarial principle.
After the hearing, the Authority deliberates. The definitive decision is carried by absolute majority of votes; where there is a tied vote, the President of the Authority has the casting vote. The deliberations are secret and any breach of secrecy renders the decision null and void. The law stipulates that the rapporteur general or the deputy rapporteur general designated by him/her and the rapporteur attend the deliberations but without voting rights, except when the Authority rules on practices referred to it pursuant to Article L. 462-5 (Article L. 463-7, para. 4), namely anticompetitive agreements, abuse of dominance or abusively low prices.