COMPETITION • FRENCH LAW • PROCEDURE
Under Article L. 420-6 of the Commercial Code, any natural person who fraudulently takes a decisive part in the conception, organization or implementation of practices referred to in Articles L. 420-1, L. 420-2 and L. 420-2-2 is liable to a prison sentence of up to four years and a fine of EUR 75,000. Attempting to commit an infringement is not sufficient to characterize the offense. On the other hand, the Article L. 420-6 infringement is constituted even if the concerted actions have not been decisive in the awarding of a contract or if the whole market has not been affected.
Participation must be personal. This condition rules out the prosecution of any person not present at the meetings at issue and not in a managerial position in the undertaking in question. Likewise, without a delegation of authority, an employee cannot take a decisive part in the infringement within the meaning of Article L. 420-6 of the Commercial Code in the name of his/her employer. The decisive part in the infringement is established when a person knowingly signs and makes a bid on a market distorted by cover bids that it has itself solicited, or signs and submits a cover bid or gives instructions to do so.
Fraudulent participation in a concerted action constitutes an offense for which the limitation period runs from the time the accused ceases his/her participation in it.