COMPETITION • FRENCH LAW • PROCEDURE
Both the Competition Authority’s investigation services and the services of the Minister of the Economy have the discretionary power to initiate an investigation. No legislative or regulatory provision requires them to justify their decision. The principle of the discretionary power to investigate, initially limited to investigations carried out under Article L. 450-3 of the Commercial Code, was subsequently extended to search and seizure operations under Article L. 450-4.
Following the example of European law, the Competition Authority is free to choose the appropriate investigative measure. The Administration is not required to report on its choice to use the procedure provided for in Article L. 450-4 of the Commercial Code, which is not subsidiary to the other procedures that may be used and whose conduct is such as to ensure the preservation of evidence. Nevertheless, the total absence of a written record of the practice sought and the urgency of avoiding the withering away of evidence can always be invoked to justify recourse to the in-depth investigation rather than the basic investigation.
