COMPETITION- C COM
Art. L. 410-1. – The rules defined in this book apply to all production, distribution and service activities, including those carried out by public entities, in particular within the framework of public service delegation agreements.
Art. L. 410-2. – Except in cases where the law provides otherwise, the prices of goods, products and services falling prior to January 1, 1987 by Ordinance No. 45-1483 of June 30, 1945 are freely determined by competition.
However, in sectors or areas where price competition is limited due either to monopoly situations or lasting supply difficulties, or to legislative or regulatory provisions, a Council of State decree may regulate prices after consultation of the Competition Council.
The provisions of the first two paragraphs do not prevent the Government from deciding, by decree in the Council of State, against excessive increases or decreases in prices, temporary measures motivated by a crisis situation, exceptional circumstances, a public calamity or a manifestly abnormal market situation in a given sector. The decree is made after consultation with the National Consumer Council. It specifies its period of validity, which cannot exceed six months.
Art. L. 420-1. – Are prohibited, when their object or may have the effect of preventing, restricting or distorting the play of competition on a market,concerted actions, conventions, express or tacit agreements or coalitions, in particular when they tend to:
1o Limit market access or the free exercise of competition by other companies;
2o To prevent the fixing of prices by the free play of the market by artificially promoting their rise or fall;
3o Limit or control production, outlets, investments or technical progress;
4o Distribute markets or sources of supply.
Art. L. 420-2. – Abusive exploitation by a company or a group of companies of a dominant position on the internal market or a substantial part of it is prohibited under the conditions provided for in Article L. 420-1. These abuses can consist in particular in refusal of sale, in tied selling or in discriminatory conditions of sale as well as in the termination of established commercial relations, on the sole ground that the partner refuses to submit to unjustified commercial conditions.
In addition, when it is liable to affect the functioning or structure of competition, the abusive exploitation by a company or a group of companies of the state of economic dependence in which it is located is prohibited. regard a client or supplier company. These abuses may consist in particular in refusal of sale, tied selling, discriminatory practices referred to in I of article L. 442-6 or range agreements.
Art. L. 420-3. – Any commitment, agreement or contractual clause relating to a practice prohibited by Articles L. 420-1 and L. 420-2 is void.
Art. L. 420-4. – I. – The following practices are not subject to the provisions of Articles L. 420-1 and L. 420-2:
1o Which result from the application of a legislative text or a regulatory text adopted for its application;
2o Which the authors can justify that they have the effect of ensuring aeconomic progress and that they reserve for users a fair share of the resulting profit, without giving the undertakings concerned the possibility of eliminating competition for a substantial part of the products in question. These practices which may consist in organizing, for agricultural products or of agricultural origin, under the same brand or trade name, the volumes and the quality of production as well as the commercial policy, including by agreeing on a common transfer price. must impose restrictions on competition, only insofar as they are essential to achieve this objective of progress.
II. – Certain categories of agreements or certain agreements, in particular when they are intended to improve the management of medium-sized or small businesses, may be recognized as meeting these conditions by decree issued after the approval of the Competition Council.
Art. L. 420-5. – Pricing or selling price practices to consumers that are unreasonably low in relation to production, processing and marketing costs are prohibited, since these offers or practices have the purpose or may have the effect of eliminating a market or to prevent a company or one of its products from entering a market.
Marketing costs also and imperatively include all costs resulting from legal and regulatory obligations related to product safety.
These provisions are not applicable in the event of resale as is, with the exception of sound recordings reproduced on physical media.
Art. L. 420-6. – Is punished by imprisonment of four years and a fine of 500,000 F the fact, for any natural person, fraudulently taking a personal and decisive part in the design, organization or implementation of practices referred to in Articles L. 420-1 and L. 420-2
The court may order that its decision be published in full or in extracts in the newspapers it designates, at the expense of the convicted person.
Art. L. 430-1. – Any proposed concentration or any concentration likely to harm competition, in particular by creating or strengthening a dominant position, may be submitted by the Minister responsible for the economy to the opinion of the Competition Council.
These provisions only apply when the companies which are parties to the act or which are the subject thereof or which are economically linked to them have either carried out together more than 25% of the sales, purchases or other transactions on a national market of substitutable goods, products or services or on a substantial part of such a market, or a total turnover excluding tax of more than seven billion francs, provided that at least two of the undertakings party to the concentration have achieved a turnover business of at least two billion francs.
Art. L. 430-2. – Concentration results from any act, whatever its form, which involves transfer of ownership or enjoyment of all or part of the assets, rights and obligations of a company or which has the object, or the effect, to allow a company or a group of companies to exercise, directly or indirectly, over one or more other companies a decisive influence.
Art. L. 430-3. – Any concentration plan or any concentration not dating back more than three months may be submitted to the Minister responsible for the economy by a company concerned. The notification may be accompanied by commitments. The silence kept for two months constitutes a tacit decision to accept the concentration project or the concentration as well as the commitments attached to it. This period is extended to six months if the Minister refers to the Competition Council.
Art. L. 430-4. – The Competition Council assesses whether the proposed concentration or the concentration makes a sufficient contribution to economic progress to compensate for the harm to competition. The advice takes into account the competitiveness of the companies in question with regard to international competition.
Art. L. 430-5. – The Minister responsible for the economy and the Minister responsible for the economic sector concerned may, following the opinion of the Competition Council, by reasoned decree and by setting a deadline, order the companies, either not to give following the proposed concentration or to restore the previous legal situation, or to modify or complete the transaction or to take any appropriate measure to ensure or restore sufficient competition.
They may also make the completion of the transaction conditional on compliance with requirements such as to make a sufficient contribution to economic and social progress to compensate for harm to competition.
These injunctions and prescriptions apply whatever the stipulations of the parties.
Art. L. 430-6. – The Competition Council may, in the event of abuse of a dominant position or a state of economic dependence, ask the Minister responsible for the economy to order, jointly with the Minister responsible for the sector, by reasoned order, to the company or group of companies in question to modify, supplement or terminate, within a determined period, all agreements and all acts by which the concentration of economic power has been achieved which has enabled them to abuse even if these acts were the subject of the procedure provided for in this title.
Art. L. 430-7. – The decisions mentioned in this title are taken according to the procedure provided for in the second paragraph of article L. 463-2 and articles L. 463-4, L. 463-6 and L. 463-7. However, the interested parties must submit their observations in response to the communication of the report within one month.
These decisions are motivated and published in the Official Bulletin of Competition, Consumption and Fraud Control with the advice of the Competition Council.
In the event of non-compliance with these decisions or the commitments mentioned in Article L. 430-3, the Minister responsible for the economy and the Minister responsible for the economic sector concerned may, after consultation with the Competition Council and in the limits of its opinion, pronounce a financial penalty the amount of which is defined in accordance with the third and fourth paragraphs of article L. 464-2.
TRANSPARENCY, RESTRICTIVE PRACTICES OF COMPETITION AND OTHER PROHIBITED PRACTICES
Art. L. 441-1. – The rules relating to the conditions of sale to the consumer are set by Article L. 113-3 of the Consumer Code reproduced below:
“Art. L. 113-3. – Any seller of products or any service provider must, by means of marking, labeling, display or any other appropriate process, inform the consumer about the prices, the possible limitations of contractual liability and the special conditions of the sale, in accordance with the terms set by decree of the Minister responsible for the economy, after consultation with the National Consumer Council. “
Art. L. 441-2. – Any advertising towards the consumer, broadcast on any medium or visible from outside the place of sale, mentioning a price reduction or a promotional price on perishable food products must specify the nature and origin of the product (s). products offered and the period during which the offer proposed by the advertiser is maintained.
Any infringement of the provisions of the first paragraph is punishable by a fine of 100,000 F.
When such promotional operations are liable, by their scale or frequency, to disrupt the markets, an interministerial order or, failing that, a fixed prefectural order, for the products concerned, the frequency and duration of such operations.
The cessation of advertising carried out under conditions that do not comply with the provisions of this article may be ordered under the conditions provided for in Article L. 121-3 of the Consumer Code.
Art. L. 441-3. – Any purchase of products or any provision of service for a professional activity must be invoiced.
The seller is required to issue the invoice upon completion of the sale or provision of the service. The buyer must claim it. The invoice must be drawn up in duplicate. The seller and the buyer must each keep a copy.
The invoice must mention the name of the parties as well as their address, the date of the sale or service, the quantity, the precise name, and the unit price excluding VAT of the products sold and services rendered as well as any reduction in price acquired on the date of sale or provision of services and directly linked to this sale or provision of services, excluding discounts not provided for on the invoice.
The invoice also mentions the date on which payment is due. It specifies the discount conditions applicable in the event of payment on a date prior to that resulting from the application of the general conditions of sale. Payment is deemed to have been made on the date on which the funds are made available by the client to the beneficiary or his surrogate.
Art. L. 441-4. – Any violation of the provisions of article L. 441-3 is punishable by a fine of 500,000 F. The fine may be increased to 50% of the amount invoiced or of that which should have been invoiced.
Art. L. 441-5. – Legal persons can be declared criminally liable under the conditions provided for in article 121-2 of the penal code for the offense provided for in article L. 441-4. The penalties incurred by legal persons are:
1o The fine in accordance with the terms set out in article 131-38 of the penal code;
2o The penalty of exclusion from public contracts for a period of five years at most, in application of 5o of article 131-39 of the same code.
Art. L. 441-6. – Any producer, service provider, wholesaler or importer is required to communicate to any purchaser of a product or requester for the provision of services for a professional activity who so requests his price list and conditions of sale. These include the terms of payment and, where applicable, discounts and rebates.
The payment conditions must specify the calculation methods and the conditions under which penalties are applied in the event that the sums due are paid after the payment date appearing on the invoice, when the payment occurs after the deadline set by the general conditions of sale.
These penalties are of an amount at least equivalent to that which would result from the application of a rate equal to one and a half times the legal interest rate.
The communication provided for in the first paragraph is carried out by any means consistent with the practice of the profession.
The conditions under which a distributor or a service provider is remunerated by its suppliers, in return for specific services, must be the subject of a written contract in duplicate held by each of the two parties.
Any violation of the provisions referred to above is punishable by a fine of 100,000 F.
Legal persons can be declared criminally responsible, under the conditions provided for by article 121-2 of the penal code.
The penalty incurred by legal persons is the fine, in accordance with the terms set out in article 131-38 of the said code.
Practices restricting competition
Art. L. 442-1. – The rules relating to sales or services with bonuses, to refusals to sell or to services, services by lots or by imposed quantities are set by Articles L. 121-35 and L. 122-1 of the Consumer Code reproduced below. after:
“Art. L. 121-35. – Any sale or offer to sell products or goods or any service or offer to provide services, made to consumers and giving the right free of charge, immediately or in the future, to a premium consisting of products, goods or services except if they are identical to those which are the subject of the sale or the service.
This provision does not apply to small items or services of low value or to samples. ”
“Art. L. 122-1. – It is forbidden to refuse to a consumer the sale of a product or the provision of a service, except legitimate reason, and to subordinate the sale of a product to the purchase of an imposed quantity or to the purchase concomitant with another product or another service and to subordinate the provision of a service to that of another service or to the purchase of a product. “
Art. L. 442-2. – The fact, for any trader, to resell or to announce the resale of a product in the state at a price lower than its effective purchase price is punished by 500,000 F fine. This fine may be increased to half of the advertising expenditure in the event that an advertising advertisement, whatever the medium, shows a price lower than the actual purchase price.
The actual purchase price is the unit price appearing on the invoice plus sales taxes, specific taxes relating to this resale and the price of transport.
Art. L. 442-3. – Legal persons can be declared criminally responsible, under the conditions provided for by article 121-2 of the penal code, for the offense provided for in article L. 442-2.
The penalties incurred by legal persons are:
1o The fine in accordance with the terms set out in article 131-38 of the penal code;
2o The penalty mentioned in 9o of article 131-39 of the same code.
The termination of the advertisement may be ordered under the conditions provided for in Article L. 121-3 of the Consumer Code.
Art. L. 442-4. – I. – The provisions of Article L. 442-2 are not applicable:
1o To voluntary or forced sales motivated by the cessation or change of a commercial activity:
a) To products whose sale is seasonal marked, during the terminal period of the sales season and in the interval between two sales seasons;
(b) Products which no longer meet general demand due to changes in fashion or the appearance of technical improvements;
c) Products, with identical characteristics, the replenishment of which has been carried out in decline, the actual purchase price then being replaced by the price resulting from the new purchase invoice;
d) Food products marketed in a store with a sales area of less than 300 square meters and non-food products marketed in a store with a sales area of less than 1,000 square meters, the resale price of which is aligned with the price legally charged for the same products by another trader in the same area of activity;
2o On condition that the reduced price offer is not the subject of any advertising or announcement outside the point of sale, for perishable products from the moment they are threatened with rapid deterioration.
II. – The exceptions provided for in I do not preclude the application of 2 of article L. 625-5 and 1 of article L. 626-2.
Art. L. 442-5. – Is punished by a fine of 100,000 F the fact by any person to impose, directly or indirectly, a minimum character at the resale price of a product or a good, at the price of a service or at a commercial margin.
Art. L. 442-6. – I. – Engages the responsibility of its author and obliges him to repair the damage caused by the fact, by any producer, trader, industrialist or craftsman:
1o To practice, with regard to an economic partner, or to obtain discriminatory prices, payment terms, terms of sale or terms of sale or purchase that are not justified by actual counterparties, thereby creating a disadvantage or advantage for this partner in the competition ;
2o To obtain or attempt to obtain an advantage, a prerequisite for placing orders, without attaching it to a written commitment on a proportionate purchase volume and, where applicable, a service requested by the supplier and having been the subject of a written agreement;
3o Obtain or attempt to obtain, under the threat of a sudden termination of commercial relations, prices, payment terms, terms of sale or terms of commercial cooperation manifestly deviating from the general terms of sale;
4o Suddenly terminating, even partially, an established commercial relationship, without written notice taking into account previous commercial relationships or uses recognized by inter-professional agreements. The preceding provisions do not preclude the option of termination without notice, in the event of non-performance by the other party of its obligations or of force majeure;
5o To participate directly or indirectly in the violation of the prohibition on resale outside the network made to the distributor bound by a selective or exclusive distribution agreement exempted under the applicable rules of competition law.
II. – The action is brought before the competent civil or commercial court by any person showing an interest, by the public prosecutor, by the minister responsible for the economy or by the president of the Competition Council, when the latter finds, on the occasion of matters falling within its jurisdiction, a practice mentioned in this article.
III. – The president of the court seised may, in summary proceedings, order the cessation of the acts in question or order any other provisional measure.
Art. L. 442-7. – No association or cooperative of business or administration may, in the usual way, offer products for sale, sell them or provide services if these activities are not provided for in its statutes.
Art. L. 442-8. – It is prohibited for any person to offer for sale products or to offer services by using, under irregular conditions, the public domain of the State, local communities and their public establishments.
Violations of the prohibition mentioned in the previous paragraph are investigated and noted under the conditions defined by Articles L. 450-1 to L. 450-3 and L. 450-8.
Agents may consign, in premises they determine and for a period which may not exceed one month, the products offered for sale and the goods which have enabled the sale of the products or the offer of services.
The consignment gives rise to the immediate establishment of a report. This includes an inventory of goods and goods consigned as well as a statement of their value. It is communicated within five days of its closing to the public prosecutor and to the person concerned.
The court may order the confiscation of the products offered for sale and of the goods which enabled the sale of the products or the offer of services. The court may order the offender to pay the public treasury a sum corresponding to the value of the products consigned, in the event that a seizure has not been carried out.
Other prohibited practices
Art. L. 443-1. – Barely a fine of 500,000 F, the payment period, by any producer, reseller or service provider, may not be greater than:
1o Thirty days after the end of the delivery decade for purchases of food products perishable products and frozen or deep-frozen meats, frozen fish, ready-made meals and canned goods made from perishable food products, with the exception of purchases of seasonal products made under so-called cultivation contracts referred to in Articles L. 326 -1 to L. 326-3 of the rural code;
2o Twenty days after the day of delivery for purchases of live cattle intended for consumption and derived fresh meats;
3o thirty days after the end of the month of delivery for purchases of alcoholic beverages liable to consumption rights provided for in article 403 of the general tax code;
4o In the absence of inter-professional agreements concluded in application of Book VI of the Rural Code and made compulsory by regulation for all operators throughout the metropolitan territory with regard to payment deadlines, seventy-five days after the day delivery for purchases of alcoholic beverages subject to running rights provided for in article 438 of the same code.
Art. L. 443-2. – I. – The fact, by disseminating, by any means whatsoever, false or slanderous information, by throwing on the market offers intended to disturb the prices or over-offers made at the prices requested by the sellers, or by using any other fraudulent means, to operate or to attempt to operate an artificial increase or decrease in the price of goods or services or public or private effects, is punishable by two years’ imprisonment and 200,000 F of fine.
II. – When the artificial rise or fall in prices concerns food products, the penalty is increased to three years’ imprisonment and a fine of 300,000 F.
III. – Natural persons guilty of the offenses provided for in this article also incur the following additional penalties:
1o The prohibition of civic, civil and family rights, in accordance with the terms of article 131-26 of the penal code;
2o The display or dissemination of the decision pronounced under the conditions provided for by article 131-35 of the penal code.
Art. L. 443-3. – I. – Legal persons can be declared criminally liable under the conditions provided for by article 121-2 of the penal code for the offenses defined in I and II of article L. 443-2.
II. – The penalties incurred by legal persons are:
1o The fine, in accordance with the terms set out in article 131-38 of the penal code;
2o The penalties mentioned in 2o, 3o, 4o, 5o, 6o and 9o of article 131-39 of the same code.
III. – The prohibition mentioned in 2o of article 131-39 of the same code relates to the activity in the exercise of or on the occasion of the exercise of which the offense was committed.
Art. L. 450-1. – Officials authorized for this purpose by the Minister responsible for the economy may carry out the inquiries necessary for the application of the provisions of this book.
The rapporteurs of the Competition Council have the same powers for matters referred to the Council.
Category A officials of the Ministry responsible for the economy, specially authorized for this purpose by the Keeper of the Seals, Minister of Justice, on the proposal of the Minister responsible for the Economy, may receive investigating judges from letters rogatory. .
Art. L. 450-2. – Investigations give rise to the establishment of minutes and, where appropriate, reports.
The reports are sent to the competent authority. A duplicate is left to the interested parties. They are binding until proven otherwise.
Art. L. 450-3. – Investigators can access any premises, land or means of transport for professional use, request the communication of books, invoices and all other professional documents and take copies thereof, collect information and justifications upon summons or on site.
They can ask the authority on which they depend to appoint an expert to carry out any necessary contradictory expertise.
Art. L. 450-4. – Investigators may not carry out visits to any location or seize documents, except in the context of inquiries requested by the Minister responsible for the economy or the Competition Council and with judicial authorization given by order of the president of the tribunal de grande instance in whose jurisdiction the places to be visited are located, or of a judge delegated by him. When these places are located within the jurisdiction of several jurisdictions and simultaneous action must be taken in each of them, a single order may be issued by one of the competent presidents.
The judge must verify that the request for authorization submitted to him is founded; this request must include all the information needed to justify the visit.
The visit and seizure are carried out under the authority and control of the judge who authorized them. He appoints one or more judicial police officers responsible for assisting in these operations and keeping him informed of their progress. When they take place outside the jurisdiction of its tribunal de grande instance, it issues a rogatory commission to exercise this control to the president of the tribunal de grande instance in whose jurisdiction the visit takes place.
The judge can go to the premises during the intervention. At any time, he can decide to suspend or stop the visit.
The ordinance mentioned in the first paragraph of this article may only be appealed against in accordance with the rules provided for by the code of criminal procedure. This appeal does not
The visit, which cannot begin before six o’clock or after twenty-one o’clock, is carried out in the presence of the occupant of the premises or his representative.
The investigators, the occupant of the premises or his representative as well as the judicial police officer can only take cognizance of the documents and documents before they are seized.
Inventories and seals are carried out in accordance with Article 56 of the Code of Criminal Procedure.
The originals of the report and the inventory are sent to the judge who ordered the visit.
The parts and documents which are no longer useful for the manifestation of the truth are returned to the occupant of the premises.
Art. L. 450-5. – The President of the Competition Council is informed without delay of the initiation and outcome of the investigations mentioned in Article L. 450-4 when they have been carried out on the initiative of the Minister responsible for the economy and that ‘they relate to facts likely to come under Articles L. 420-1 and L. 420-2.
He can propose to the board to seize it ex officio.
Art. L. 450-6. – At the request of the rapporteur or of the rapporteurs appointed by the President of the Competition Council for the examination of each case, the authority on which the agents referred to in Article L. 450-1 depend appoints the investigators and proceeds without deadline for any investigation that the rapporteur deems useful. The latter defines the orientations of the investigation and is kept informed of its progress.
Art. L. 450-7. – Investigators can, without being opposed to professional secrecy, access any document or element of information held by the services and establishments of the State and other public authorities.
Art. L. 450-8. – Is punished by imprisonment for six months and a fine of 50,000 F if anyone opposes, in any way whatsoever, the exercise of the functions of which the agents designated in article L 450-1 and the rapporteurs of the Competition Council are responsible in application of this book.
OF THE COMPETITION COUNCIL
Of the organization
Art. L. 461-1. – I. – The Competition Council comprises seventeen members appointed for a period of six years by decree issued on the report of the Minister responsible for the economy.
II. – It is made up of:
1o Eight members or former members of the Council of State, the Court of Cassation, the Court of Auditors or other administrative or judicial jurisdictions;
2o Four personalities chosen for their competence in economic matters or in matters of competition and consumption;
3o Five personalities exercising or having exercised their activities in the sectors of production, distribution, crafts, services or liberal professions.
III. – The president and the three vice-presidents are appointed, for three of them, from among the members or former members of the Council of State, of the Court of Cassation or of the Court of Auditors, and for one of among themselves, among the categories of personalities mentioned in 2o and 3o of II.
IV. – The four personalities provided for in 2o of II are chosen from a list of eight names presented by the eight members provided for in 1o of II.
V. – The mandate of the members of the Competition Council is renewable.
Art. L. 461-2. – The president and the vice-presidents exercise their functions on a full-time basis. They are subject to the incompatibility rules laid down for public employment.
Any member of the council who has not participated, without valid reason, in three consecutive meetings or who does not fulfill the obligations provided for in the two paragraphs below, is declared automatically resigning by the Minister. Any member of the board must inform the chairman of the interests he holds or comes to acquire and of the functions he exercises in an economic activity.
No member of the board may deliberate in a matter in which he has an interest or if he represents or has represented one of the interested parties.
The government commissioner to the council is appointed by the minister responsible for the economy.
Art. L. 461-3. – The council can sit either in plenary formation, or in sections, or in standing committee. The standing committee is made up of the president and the three vice-presidents.
In the event of an equal vote, the vote of the president of the formation is preponderant.
The general rapporteur, the deputy general rapporteur (s) and the permanent rapporteurs are appointed on the proposal of the president by order of the Minister responsible for the economy. The other rapporteurs are appointed by the president.
The funds allocated to the Competition Council for its operation are entered in the budget of the ministry responsible for the economy.
The president is the authorizing officer of the council’s income and expenditure.
Art. L. 462-1. – The Competition Council can be consulted by parliamentary committees on legislative proposals as well as on any question concerning competition.
It gives its opinion on any question of competition at the request of the Government. It can also give its opinion on the same questions at the request of local authorities, professional and trade union organizations, approved consumer organizations, chambers of agriculture, chambers of trade or chambers of commerce and industry, in with regard to the interests for which they are responsible.
Art. L. 462-2. – The council must be consulted by the Government on any draft regulatory text instituting a new regime having the direct effect of:
1 ° Subjecting the exercise of a profession or access to a market to quantitative restrictions;
2o To establish exclusive rights in certain areas;
3o To impose uniform practices in terms of prices or conditions of sale.
Art. L. 462-3. – The council can be consulted by the courts on the anti-competitive practices defined in articles L. 420-1, L. 420-2 and L. 420-5 and noted in the cases referred to them. He can only give an opinion after an adversarial procedure. However, if he has information already collected during a previous procedure, he can give his opinion without having to implement the procedure provided for in this text.
The course of the prescription is suspended, if necessary, by the consultation of the council.
The advice of the council can be published after the dismissal or the judgment.
Art. L. 462-4. – The board may be consulted by the Minister responsible for the economy on any merger project or any concentration likely to harm competition under the conditions provided for in Title III above.
Art. L. 462-5. – The Competition Council may be referred by the Minister for the Economy to any practice mentioned in Articles L. 420-1, L. 420-2 and L. 420-5. It can be seized ex officio or be seized by companies or, for any matter concerning the interests for which they are responsible, by the organizations referred to in the second paragraph of Article L. 462-1.
Art. L. 462-6. – The Competition Council examines whether the practices referred to it fall within the scope of Articles L. 420-1, L. 420-2 or L. 420-5 or may be justified by application of Article L. 420-4. He pronounces, if necessary, sanctions and injunctions.
When the facts appear to him to justify the application of article L. 420-6, he sends the file to the public prosecutor. This transmission interrupts the prescription of public action.
Art. L. 462-7. – The council cannot be seized of facts going back more than three years if no act has been made tending to their research, their observation or their sanction.
Art. L. 462-8. – The Competition Council may declare, by reasoned decision, the referral inadmissible if it considers that the facts invoked do not fall within the scope of its competence or are not supported by sufficiently convincing evidence.
Of the procedure
Art. L. 463-1. – The investigation and the procedure before the Competition Council are completely contradictory.
Art. L. 463-2. – Without prejudice to the measures provided for in Article, L. 464-1, the council notifies the grievances to the interested parties as well as to the Government Commissioner, who can consult the file and present their observations within two months.
The report is then notified to the parties, to the Government Commissioner and to the ministers concerned. It is accompanied by the documents on which the rapporteur is based and any observations made, if any, by those concerned.
The parties have a period of two months to present a response which can be consulted in the fifteen days preceding the session by the persons referred to in the previous paragraph.
Art. L. 463-3. – The president of the Competition Council may, after notification of the grievances to the interested parties, decide that the case will be brought before the standing committee, without the prior establishment of a report. This decision is notified to the parties.
Art. L. 463-4. – The President of the Competition Council may refuse the communication of documents involving business secrecy, except in cases where the communication or consultation of these documents is necessary for the procedure or for the exercise of the rights of the parties. The documents in question are withdrawn from the file.
Art. L. 463-5. – The investigating and trial courts may communicate to the Competition Council, at its request, the minutes or investigation reports having a direct link with facts before the Council.
Art. L. 463-6. – Is punished by the penalties provided for in article 226-13 of the penal code, the disclosure by one of the parties of information concerning another party or a third party and of which it could only become aware following communications or consultations which have taken place.
Art. L. 463-7. – The meetings of the Competition Council are not public. Only the parties and the Government Commissioner can attend. The parties may request to be heard by the council and be represented or assisted.
The Competition Council may hear any person whose hearing it considers likely to contribute to its information.
The general rapporteur, the deputy general rapporteur (s) and the government commissioner may present observations.
The general rapporteur, the deputy general rapporteur (s) and the rapporteur attend the deliberation without voting rights, except when the board rules on practices referred to it in application of article L. 462-5.
Decisions and remedies
Art. L. 464-1. – The Competition Council may, after hearing the parties in question and the Government Commissioner, take the precautionary measures requested of it by the Minister responsible for the economy, by the persons mentioned in the second paragraph of Article L 462-1 or by companies.
These measures can only be taken if the practice denounced causes serious and immediate harm to the general economy, to that of the sector concerned, to the interests of consumers or to the complaining company.
They may include the suspension of the practice concerned as well as an injunction to the parties to return to the previous state. They must remain strictly limited to what is necessary to deal with the emergency.
The protective measures are published in the Official Bulletin of Competition, Consumption and Fraud Control.
Art. L. 464-2. – It can order the interested parties to put an end to the anti-competitive practices within a specified period or impose specific conditions.
He may impose a financial penalty applicable either immediately or in the event of non-compliance with the injunctions.
The financial penalties are proportionate to the seriousness of the alleged acts, to the extent of the damage caused to the economy and to the situation of the company or organization sanctioned. They are determined individually for each company or organization sanctioned and in a reasoned manner for each sanction.
The maximum amount of the penalty is, for a company, 5% of the amount of turnover excluding tax realized in France during the last closed financial year. If the offender is not a company, the maximum is 10,000,000 F.
The Competition Council can order the publication of its decision in the newspapers or publications it designates, posting in the places it indicates and the inclusion of its decision in the report drawn up on the operations of the financial year by the managers, the board of directors or the management board of the company. The costs are borne by the person concerned.
Art. L. 464-3. – If the measures and injunctions provided for in Articles L. 464-1 and L. 464-2 are not complied with, the Board may pronounce a financial penalty within the limits set in Article L. 464-2.
Art. L. 464-4. – The pecuniary sanctions are collected like the debts of the State foreign to the tax and to the field.
Art. L. 464-5. – The standing committee can pronounce the measures provided for in article L. 464-2. However, the financial penalty pronounced cannot exceed 500,000 F for each of the authors of prohibited practices.
Art. L. 464-6. – The Competition Council can decide after the author of the referral and the Government Commissioner have been able to consult the file and make their observations, that there is no need to continue the procedure .
Art. L. 464-7. – The decision of the council taken under Article L. 464-1 may be the subject of an appeal for annulment or reformation by the parties in question and the Government Commissioner before the Paris Court of Appeal at maximum ten days after notification. The court rules within one month of the appeal.
The appeal is not suspensive. However, the first president of the Paris Court of Appeal may order that the execution of the provisional measures be suspended, if they are likely to lead to manifestly excessive consequences or if it has intervened, after their notification, of new facts of exceptional gravity.
Art. L. 464-8. – The decisions of the Competition Council mentioned in Articles L. 462-8, L. 464-1, L. 464-2, L. 464-3, L. 464-5 and L. 464-6 are notified to the parties involved and to the Minister for the Economy, who may, within one month, lodge an appeal for annulment or reformation before the Paris Court of Appeal.
The decisions are published in the Official Bulletin of Competition, Consumption and Fraud Control. The Minister responsible for the economy oversees their execution.
The appeal is not suspensive. However, the first president of the Paris Court of Appeal may order that the execution of the decision be suspended if it is likely to lead to manifestly excessive consequences or if it has intervened, subsequent to its decision. notification, new facts of exceptional gravity.
The appeal in cassation, brought if necessary, against the judgment of the court, is exercised within a period of one month following its notification.
Art. L. 470-1. – The court may jointly condemn legal persons to the payment of the fines pronounced against their managers by virtue of the provisions of this book and of the texts adopted for its application.
Art. L. 470-2. – In the event of a conviction under Articles L. 441-3, L. 441-4, L. 441-5 L. 442-2, L. 442-3, L. 442-5 and L. 443-1, the court may order that its decision be displayed or disseminated under the conditions provided for by article 131-10 of the penal code.
Art. L. 470-3. – When a person who has been the subject, for less than two years, of a conviction for one of the offenses defined by articles L. 441-2, L. 441-3, L. 441-4, L. . 441-5, L. 441-6, L. 442-2, L. 442-3, L. 442-4, L. 442-5 and L. 443-1, commits the same offense, the maximum of the fine penalty incurred is doubled.
Art. L. 470-4. – When a legal person having been the subject, for less than two years, of a conviction for one of the offenses defined by articles L. 441-3, L. 441-4, L. 441-5, L. 441-6 L. 442-2, L. 442-3 and L. 442-4 commits the same offense, the maximum rate of the fine penalty incurred is equal to ten times that applicable to natural persons for this offense .
Art. L. 470-5. – For the application of the provisions of this book, the Minister responsible for the economy or his representative may, before the civil or criminal courts, file conclusions and develop them orally at the hearing. He can also produce the minutes and investigation reports.
Art. L. 470-6. – For the application of Articles 81 to 83 of the Treaty establishing the European Community, the Minister responsible for the economy and the officials he has appointed or authorized in accordance with the provisions of this book, on the one hand, the Council of the competition, on the other hand, have the respective powers which are recognized to them by the articles of this book. The rules of procedure provided for by these texts are applicable to them.
Art. L. 470-7. – Professional organizations can bring an action before civil or commercial jurisdiction for facts directly or indirectly prejudicial to the collective interest of the profession or sector they represent, or to fair competition.
Art. L. 470-8. – A decree in Council of State determines the modalities of application of this book.