COMPETITION • FRENCH LAW • RESTRICTIVE PRACTICES
The Minister of the Economy is vested with significant special powers with respect to economic offenses. Article L. 490-8 of the Commercial Code gives the Minister of the Economy the power to file pleadings before the civil or criminal courts and to present them orally at hearings, as well as the power to produce minutes and reports of hearings.
To ensure the effectiveness of the fight against restrictive practices, Article L. 442-4 (formerly Article L. 442-6, III) also authorizes the Minister to seek the discontinuance of the practices in question or the nullity of unlawful terms or contracts. He or she may also bring an action in tort, obtain the recovery of undue payments and impose a civil fine not exceeding the higher of the following three amounts: EUR 5 million, triple the amount of unduly collected or obtained payments, or 5% of the turnover of the offending undertaking.
These prerogatives are part of the general protection of the economic public order based on the principle of free prices and competition. The Minister cannot therefore be subject to some of the procedural rules normally applicable to the parties to the proceedings. Thus, when he/she pursues the action provided for by Article L. 442-4 and the remedies relating thereto, he/she does not have to be represented by a lawyer (Commercial Code, Art. R. 442-1). The same rule applies when the Minister acts on the basis of article L. 490-8 of the Commercial Code (Commercial Code, Art. R. 490-1). On the other hand, according to the rules of civil procedure, intervention by the Minister must be sufficiently linked to the parties’ claims and follows the course of the principal action if the latter is declared inadmissible. Proceedings based on Article L. 442-4 for the defense of the economic public order are autonomous and do not in principle require the information or assent of the suppliers concerned. However, when the Minister is bringing an action for nullity, and in that case only, the provision, as amended by the Ordinance of 24 April 2019, which incorporates the requirement laid down by the Constitutional Council, requires the Minister to inform the suppliers concerned of the pursuit of that remedy.
