COMPETITION • FRENCH LAW • PROCEDURE
The rapporteur général of the Competition Authority issues a Statement of Objections if he or she considers that the anticompetitive practices are sufficiently established by the evidence obtained during the preliminary investigation. This document, which summarizes the objections raised by the rapporteur against the undertakings, is notified by the rapporteur général or the deputy rapporteur général designated by him by registered letter with acknowledgement of receipt to the interested parties and to the Government Commissioner. The Statement of Objections is a preparatory act that opens the investigation procedure before the Authority. It constitutes an essential formality because it confers on the recipient the status of accused party: proceedings cannot be validly pursued against a person who is not the addressee of this document. Above all, it constitutes the starting point of the adversarial phase of the proceedings. As of its receipt, undertakings may consult the file and submit their observations within two months. The Statement of Objections also determines the scope of the referral to the Authority, which can only rule on the objections submitted for discussion by the parties. The objections must be sufficiently precise for the interested parties to be able to fully exercise their rights of defense.
The rapporteur général is not required to serve a Statement of Objections on all the parties involved in an agreement when he or she believes that the conduct of some of them does not warrant an injunction or financial penalties. In the case of groups of undertakings, the addressees of the objections are the parent companies even if these groups are formed by distinct legal entities, as long as they are linked by capital ties and follow a single commercial, industrial and financial strategy. However, when groups have diversified activities, the objections must be notified to the subsidiaries specialized in the sector concerned. Independent distributors grouped together within a common brand having adopted a common listing, purchasing and sales policy, who have given up their commercial freedom in order to practice uniform sales prices set by the “network head”, may also be characterized as a grouping comparable to an undertaking. In this case, the objections are notified only to the company at the head of the network, which is responsible for consulting with suppliers on behalf of the undertakings it represents.
Determining who the recipients of the objections are can be difficult when they are different from the people who implemented the practices denounced. Indeed, between the date of the facts and the date of the Statement of Objections, legal or structural changes may have affected those entities, particularly in the event of a merger, absorption or restructuring involving the splintering of certain units. In order to resolve this issue, the Authority has drawn on European case law, which determines that when, between the time when the infringement was committed and the time when the undertaking in question must answer for it, the entity responsible for the operation of that undertaking has ceased to exist legally, it is necessary to first locate the person responsible, all the material and human elements having contributed to the offense, in order to subsequently identify the person who became responsible for the exploitation of this whole in order to avoid that, due to the disappearance of the person responsible for its exploitation at the time of the offense, the undertaking does not answer for the commission of the offense. The undertakings must henceforth inform the rapporteur in charge of the case of any changes in their legal situation that are likely to have an influence on the conditions under which they are represented or under which the objections are attributed. The information may be provided at any time during the investigation procedure. Failing this, undertakings will no longer be able to rely on it (Commercial Code, Art. L. 464-2, para. 1).
Although the Statement of Objections should not in principle contain inaccuracies resulting in any confusion about the identity of the recipient of the objections, material errors in the address or the name of the recipient do not vitiate the procedure provided that the undertakings actually subject to the objections can respond to the statement and are able to exercise their rights of defense. Similarly, the Competition Authority may send documents to the parties drafted in a foreign language insofar as competition proceedings are not criminal in nature, the recipients of the objections are businesses with more resources to ensure their defense than natural persons and where the parties have benefited from additional time to carry out the necessary translations.