CONCURRENCE • DROIT FRANÇAIS • Procédure
Under Article L. 462-5 of the Commercial Code, a referral to the Competition Authority may be made by the Minister of the Economy, undertakings, local authorities, professional and trade union organizations, consumer protection bodies, chambers of agriculture, chambers of trade or territorial chambers of commerce and industry, the HADOPI (High Authority of Diffusion on the Art Works and Protection of Rights on the Internet) and the presidents of the price, margin and income observatories of Guadeloupe, French Guiana, Martinique, Reunion, the Department of Mayotte, the Wallis and Futuna Islands and Saint-Pierre-et-Miquelon, for any matter concerning the interests for which these bodies are responsible. This list is exhaustive. The Authority may not, therefore, hear complaints from persons or bodies that do not belong, at the date of filing of the referral, to one or other of the categories mentioned in this list. The Authority may also refer matters to itself.
Undertakings may bring cases before the Competition Authority provided they can demonstrate their standing, although the wording does not expressly require this. They must thus justify a legitimate, direct and personal interest. This interest is assessed at the date of the filing of the application and not at the time of the alleged violation. The undertaking must therefore exist as such at the time the action is brought. If the Authority is seized by a natural person, that person must carry on a commercial activity in his own name in order to be qualified as an undertaking within the meaning of Article L. 462-5.
When the Authority is seized by professional organizations or bodies responsible for defending particular interests, the act of referral must be presented by their mandated or qualified representatives. These bodies must provide proof of their standing to defend the interests they represent, which will generally be apparent from their by-laws.
According to the Competition Authority’s internal regulations, the referral and the supporting documents are sent, in four copies, either by registered letter with acknowledgement of receipt, or by deposit at the Authority’s proceedings office against receipt. The purpose of the referral must be clearly specified; it must include, in particular, a statement of the provisions on which the referring party intends to rely. If the applicant is a natural person, the writ of referral must indicate his surname, first name, profession and domicile and if it is a legal entity, its name, form, registered office and the body representing it; when the applicant is an undertaking, it must also mention the turnover of the last three financial years and be accompanied by the corresponding balance sheets and profit and loss accounts. All documents filed with the Competition Authority must be written in French or, failing that, accompanied by a translation.
