COMPETITION • FRENCH LAW • PROCEDURE
Like EU law, French law now imposes an express duty on undertakings being investigated to actively cooperate with the authorities (Commercial Code, Art. L. 464-2, V). The undertaking must therefore comply with the convocations or requests for information or the submission of documents sent to it by the authorized agents. Otherwise, the rapporteur général (chief case-handler) may ask the Competition Authority to issue an injunction subject to a penalty payment of up to 5% of the average daily turnover for each day of delay from the date it sets. Obstruction (FR –opposition) of the investigation or inquiry is punishable by a fine of up to 1% of the highest worldwide turnover excluding tax realized during one of the fiscal years ended since the fiscal year preceding the one in which the practices were implemented. Obstruction of an investigation or inquiry is defined, in particular, as the provision of incomplete or inaccurate information or the communication of incomplete or misleading documents. More broadly it covers any conduct by the undertaking that intentionally or negligently obstructs or delays the investigation or inquiry by any means and may include refusing to provide the information or documents requested within the prescribed time-limit, failing to rectify an inaccurate or incomplete response, breaking a seal or tampering with electronic messages during inspection operations. As an administrative infringement, the characterization of obstruction sanctioned by Article L. 464-2 is not subject to the general principles of criminal law.
In addition, Article L. 450-8 of the Commercial Code imposes a penalty of two years’ imprisonment and a fine of EUR 300,000 on anyone who obstructs/opposes, in any way whatsoever, the performance of the duties of the agents mentioned in Article L. 450-1. The crime of obstructing an investigation can be characterized in various ways. The person under investigation may have refused to remain in the undertaking and to appoint a representative so as to prevent the investigators from entering the premises, as they can only exercise this right in the presence of the occupant of the premises or his representative, or refused, to attend the premises of the General Directorate for Competition, Consumer Affairs and Fraud Control (DGCCRF) when summoned to do so, in order to verify invoices that could not be presented at the premises of the undertaking. The offense of actively opposing or obstructing an investigation is also constituted when the head of an undertaking imposes conditions on the release of documents, which are the subject-matter of the audit, although he has them in his possession or when the documents are not made available in their entirety. On the other hand, a branch manager cannot be accused of not having obtained the documents requested by the investigating agents and kept at the head office, which he requested to no avail. Obstructing an investigation cannot be justified by alleged irregularities in the order authorizing the search and seizure operation. Authorized agents are in fact deemed to act under the conditions provided for by law; any obstacle to the exercise of their function constitutes the offense of active opposition/obstruction and is punishable under Article L. 450-8. An opposition may be recorded by any agent authorized within the meaning of Article L. 450-1 of the Commercial Code.