COMPETITION • FRENCH LAW • PROCEDURE
As an independent administrative authority, the French Competition Authority can take up cases on its own initiative. The referral is made ex officio on the proposal of the rapporteur general. It may concern any anticompetitive practice within the meaning of Articles L. 420-1, L. 420-2, L. 420-2-1, L. 420-2-2 or L. 420-5, or facts likely to characterize such a practice. The Authority has identified a certain number of scenarios for ex officio referrals: in the event of the rejection of a referral for inadmissibility due to insufficient evidence, in order to examine the situation in the relevant market in detail and assess whether or not there is reason to pursue the matter; when, on examining an initial referral, there is a possibility of anticompetitive practices in neighboring or related markets, or in distinct geographic markets; in the event of abstention by undertakings or professional organizations to sue when the Authority has information justifying an investigation. Moreover, since the Authority is in charge of the procedure, it can take action on its own initiative, particularly when an inadmissible or withdrawn referral reveals acts contrary to the economic public order of which it is the guardian. Consequently, the withdrawal of a complaint has no effect on the referral to the Authority when the latter has information that enables it to suspect competition violations.
There is no provision requiring the Competition Authority to justify the circumstances in which it considers it appropriate to exercise its statutory power of ex officio review. It is also empowered to take ex officio action in respect of anticompetitive practices in a sector of activity for which it has previously issued an opinion. According to the Constitutional Council, ex officio proceedings by the Competition Authority do not violate the principle of independence and impartiality provided that it is surrounded by sufficient guarantees, such as the investigation of the case under the sole direction of the general rapporteur or the absence of the latter from the Authority’s deliberations before rendering a decision. Ex officio proceedings are not prejudicial to the right to an impartial hearing for the purposes of Article 6 ECHR when no market, operator or prohibited act is designated.
