COMPETITION • FRENCH LAW • PROCEDURE
Like EU law, French law now imposes an express duty on undertakings being investigated to actively cooperate with the authorities. Article L. 464-2 of the Commercial Code was thus amended to that end by the Ordinance of 13 November 2008. Undertakings must comply with convocations or requests for information made by authorized officers. If they fail to comply, the rapporteur général may ask the Competition Authority to order penalty payments of up to 5% of the undertaking’s average daily turnover per day following the deadline it has fixed and until compliance with his demands.
Undertakings must also comply with the operations necessary to the investigation. Obstructing an investigation or proceedings is punishable by a fine which may amount to 1% of the highest worldwide turnover before tax achieved in one full financial year prior to the year the unlawful practices were implemented. The case handlers are not required to refer to those sanctions in their requests for information or to send a letter of formal notice to execute before initiating proceedings. Obstruction, according to the legislation, also includes providing inaccurate or incomplete information or doctored or partial documents. According to the European Commission, any statement, which gives a distorted picture of the true facts asked for, and which departs significantly from reality on major points and is thus false or so incomplete that the reply taken in its entirety is likely to mislead the Commission about the true facts, constitutes incorrect information. The Competition Authority held that obstruction, the types of which are not exhaustively defined by section V of Article L. 464-2 of the Commercial Code, covers all intentional or negligent conduct to obstruct or delay, in any way, the course of the investigation or of the proceedings and may refer to the refusal to disclose information or documents requested within the prescribed time or failure to rectify an inaccurate or incomplete answer, the breaking of seals or the alteration of the reception of e-mails during the operations.
