On 22 August 2019, the Polynesian Competition Authority (the APC – Autorité polynésienne de la concurrence) handed down fines of 235 million Pacific Francs (around EUR 2 million) for an alleged abuse of a dominant position to 13 distribution firms belonging to the Wane Group operating stores of the brands Carrefour, Champion and Easy Market in French Polynesia, and ordered publication of the ruling. The abuse of dominant position claimed was linked to alleged excessive prices charged to drinks suppliers for the refrigeration of their products in the fridges purchased and maintained by the distribution companies.

The undertakings, assisted by the law firm Vogel & Vogel, argued that the  President of the Polynesian Authority lacked impartiality because of his interference in the investigation of the case, the fact that, in parallel, he testified against the companies at issue in an employment tribunal proceeding and that he had made numerous statements confirming the dominant position of the group in question prior to the APC hearing to rule on the existence of an abuse of dominant position. Their claims were also based on the conflict of interest of the President and the APC in adjudicating a complaint of their own lack of impartiality when the APC was the subject of a “legitimate suspicion” proceeding, multiple requests for the withdrawal of the President and a request for postponement of the hearing by the Government Commissioner, local representative of the French government.

In the Order of 16 October 2019, the delegate of the First President of the Paris Court of Appeal held that “it appears from the documents in the case file that specific elements make it possible to raise doubts as the total impartiality of Mr. Jacques MEROT, President of the APC, it is established that he has spoken publicly and in the media and repeatedly on the situation of the WANE group during the APC’s investigation by making statements lacking neutrality, it is not disputed that he provided a written statement in the context of a dispute before an employment tribunal in favor of an executive in conflict with the Wane group, which he refused to recuse himself during the hearing before the APC on 16 July 2019 despite the recommendations of the Government Commissioner and a request  from the Wane Group’s counsel, proceedings concerning an application for legitimate suspicion regarding him are still pending, it is thus clear from these elements that the APC’s decision of 22 August 2019 poses a risk of serious grounds for annulment based on the lack of impartiality of the panel of judges

The delegate of the First President of the Court of Appeal also ruled that the injunction requiring the undertakings in question to publish in the local press a communiqué which makes no reference at all to the precise identity of the condemned companies, uses misleading expressions and engenders confusion between the undertakings and the group to which they belong would seriously and irreparably damage the image of the Wane group, the result of which being that the publication measures ordered would have manifestly excessive consequences.

The stay of enforcement is also due to of the manifestly excessive financial consequences which would have arisen for the undertakings concerned.

This is a very positive decision for the safeguarding of the fundamental rights of businesses under competition law. It is very rare for the enforcement of a decision to be suspended due to the possible existence of procedural irregularities. There has only been one such case concerning the French Competition Authority.” Underlines Joseph Vogel, partner at the firm Vogel & Vogel.

The Vogel & Vogel legal team which assisted the undertakings in question and obtained the stay of enforcement, was composed of Joseph Vogel, founding partner, Laurence Boudailliez, senior manager and Anaïs Hirszowski, senior associate.

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