Procedure before the Competition Council
After the third paragraph of Article L. 461-3 of the Commercial Code, a paragraph worded as follows is inserted:
“The general rapporteur may delegate to one or more deputy general rapporteurs all or part of the powers that he holds under of book IV of this code. “
Article L. 420-2 of the Commercial Code reads as follows:
“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.
“Is also prohibited, since it is likely to affect the functioning or the structure of competition, the abusive exploitation by a company or a group of companies of the state of economic dependence in which is found its respect a client or supplier company. These abuses may consist in particular in refusal to sell, tied selling or discriminatory practices referred to in Article L. 442-6. “
Article L. 420-6 of the Commercial Code is supplemented by a paragraph worded as follows:
“Acts interrupting the limitation period before the Competition Council in application of Article L. 462-7 are also interrupting the limitation period. of public action. “
– In the first paragraph of Article L. 463-2 of the Commercial Code, the words: “the board” are replaced by the words: “the general rapporteur”.
II.- The same article is supplemented by a paragraph worded as follows:
“When exceptional circumstances justify it, the chairman of the council may, by a decision not open to appeal, grant an additional period of one month for the consultation of the file and the production submissions from the parties.”
Articles L. 463-3 and L. 464-5 of the Commercial Code are worded as follows:
“Art. L. 463-3. – The President of the Competition Council or a vice-president delegated by him may, after notification of the grievances to the interested parties, decide that the case will be judged by the Council without prior preparation of a report. This decision is notified to the parties. ”
” Art. L. 464-5. – The board, when ruling according to the simplified procedure provided for in article L. 463-3, may pronounce the measures provided for in I of article L. 464-2. However, the financial penalty may not exceed 750,000 Euro for each of the perpetrators of prohibited practices. “
Article L. 463-4 of the Commercial Code reads as follows:
“Art. L. 463-4. – The president of the Competition Council, or a vice-president delegated by him, may refuse the communication of documents involving business secrecy, except in cases where communication or consultation of these documents is necessary for the procedure or the exercise of the rights of the parties. The documents in question are withdrawn from the file or some of their references are obscured. “
After article L. 463-7 of the commercial code, an article L. 463-8 is inserted as follows:
“Art. L. 463-8. – The general rapporteur may decide to call in experts in the event of a request made at any time during the investigation by the rapporteur or a party. This decision is not subject to appeal.
“The mission and the time allotted to the expert are specified in the decision appointing him. The conduct of expertise operations is carried out in a contradictory manner.
“The financing of the expertise is the responsibility of the party requesting it or that of the council in the event that it is ordered at the request of the rapporteur. However, the council may, in its decision on the merits, place the final burden on the party or parties sanctioned in proportions that it determines. “
Opinions and decisions of the Competition Council
The first paragraph of Article L. 464-1 of the Commercial Code reads as follows:
“The Competition Council may, at the request of the Minister responsible for the economy, of the persons mentioned in the last paragraph of Article L 462-1 or companies and after hearing the parties in question and the Government Commissioner, take the precautionary measures which are requested of him or those which appear necessary. “
Article L. 464-2 of the Commercial Code reads as follows:
“Art. L. 464-2. – I. – The Competition Council can order the interested parties to put an end to anti-competitive practices within a specified period or impose special conditions.
“He can impose a financial penalty applicable either immediately or in the event of non-execution of injunctions.
“The financial penalties are proportionate to the seriousness of the alleged facts, to the extent of the damage caused to the economy, to the situation of the organization or the company sanctioned or of the group to which the company belongs and to the possible reiteration of practices prohibited by this title.
“If the offender is not a company, the maximum amount of the penalty is 3 million euros. The maximum amount of the penalty is, for a company, 10% of the amount of the highest worldwide turnover excluding taxes achieved during one of the fiscal years ending since the fiscal year preceding the one during which the practices were implemented. If the accounts of the company concerned have been consolidated or combined in accordance with the texts applicable to its corporate form, the turnover taken into account is that appearing in the consolidated or combined accounts of the consolidating or combining company.
“The Competition Council may order the publication, broadcast or display of its decision or an extract thereof according to the terms it specifies. It can also order the insertion of the decision or of an extract from it 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.
“II. – When an organization or a company does not dispute the reality of the grievances notified to it and undertakes to modify its behavior for the future, the general rapporteur can propose to the Competition Council, which hears the parties and the commissioner of the Government without prior establishment of a report, to pronounce the pecuniary sanction provided for in I, taking into account the absence of dispute. In this case, the maximum amount of the penalty incurred is reduced by half.
“III. – Total or partial exemption from financial penalties may be granted to a company or to an organization which has, with others, implemented a practice prohibited by the provisions of Article L. 420-1 if it has contributed to establish the reality of the prohibited practice and to identify its perpetrators, by providing information which the council or the administration did not previously have. Following the action taken by the company or body, the Competition Council, at the request of the general rapporteur or the minister responsible for the economy, adopts a leniency notice for this purpose, which specifies the conditions. to which the proposed exemption is subject, after the Government Commissioner and the company or the concerned body presented their observations; this notice is sent to the company or body and to the Minister, and is not published. When deciding pursuant to I of this article, the council may, if the conditions specified in the leniency notice have been met, grant an exemption from financial penalties proportionate to the contribution made to the establishment of the offense. . “
Article L. 462-8 of the Commercial Code reads as follows:
“Art. L. 462-8. – The Competition Council may declare, by reasoned decision, the referral inadmissible for lack of interest or capacity to act of the author thereof, or if the facts are prescribed within the meaning of Article L. 462 -7, or if he considers that the facts invoked do not fall within the scope of his competence.
“He can also reject the referral by reasoned decision when he considers that the facts invoked are not supported by sufficiently convincing elements.
“By decision of the President of the Competition Council or a vice-president delegated by him, disclaimers are given. “
Article L. 464-6 of the Commercial Code reads as follows:
“Art. L. 464-6. – When no practice liable to undermine competition on the market is established, the Competition Council may decide, after the author of the referral and the Government Commissioner have been placed in a position to consult the file and to make their observations, that there is no need to continue the procedure. “
Powers and means of investigation
In the first paragraph of Article L. 450-3 of the Commercial Code, the words: “and take a copy” are replaced by the words: “and obtain or take a copy by any means and on any medium”.
Article L. 450-4 of the Commercial Code is thus amended:
1o In the first paragraph, the words: “and any information medium” are inserted after the words: “the seizure of documents” and the words: “Or the Competition Council” are replaced by the words: “or the general rapporteur of the Competition Council on the proposal of the rapporteur”;
2o The second paragraph reads as follows:
“The judge must verify that the request for authorization submitted to him is founded; this request must include all the information in the possession of the requester to justify the visit. When the visit aims to allow the observation of violations of the provisions of Book IV of this Code in the process of being committed, the request for authorization may contain only the clues making it possible to presume, in this case, the existence of the practices. proof of which is sought. “;
3o After the fourth paragraph, a paragraph worded as follows is inserted:
“The order is notified verbally and on site at the time of the visit to the occupant of the premises or to his representative who receives a full copy against receipt or signing the report. In the absence of the occupant of the premises or his representative, the order is notified after the visit, by registered letter with acknowledgment of receipt. The notification is deemed to have been made on the date of receipt appearing on the notice. “;
4o The sixth paragraph is completed by a sentence worded as follows:
“If this is not possible, the judicial police officer requests two witnesses chosen from outside the persons under his authority, that of the administration of the general direction of the competition, consumption and the repression of fraud or that of the Competition Council. “;
5o The tenth paragraph reads as follows:
“The documents and documents seized are returned to the occupant of the premises within six months from the date on which the decision of the Competition Council became final. The occupant of the premises is put on formal notice, by registered letter with acknowledgment of receipt, to come and collect them, within two months. At the end of this period and in the absence of due diligence on his part, the parts and documents are returned to him, at his expense. “;
6o After the last paragraph, a paragraph worded as follows is inserted:
“The conduct of visit or seizure operations may be the subject of an appeal to the judge who authorized them within a period of two months which runs, for persons occupying the places where these operations took place, from the notification of the order which authorized them and, for other persons subsequently implicated by means of documents seized during these operations, from the date on which they became aware of the existence of these operations and at most late from the notification of grievances provided for in article L. 463-2. The judge rules on this appeal by way of an order, which can only be appealed against in accordance with the rules provided for in the Code of Criminal Procedure. This appeal is not suspensive. “
At the beginning of the first paragraph of Article L. 450-5 of the Commercial Code, the words: “The Chairman” are replaced by the words: “The General Rapporteur”.
Within six months of the publication of this law, the President of the Competition Council draws up the list of files relating to the proceedings having been the subject of a decision which became final before January 1, 1997. This list is published in the Official Bulletin of Competition, Consumption and Fraud Control.
The parts and documents are returned, at their expense, to the persons to whom they belong and who request them.
The chairman of the board may order the destruction of unclaimed items and documents at the end of a period of six months from the publication of the list provided for in the first paragraph.
Article L. 450-6 of the Commercial Code is amended as follows:
1o The first paragraph is worded as follows:
“The general rapporteur appoints, for the examination of each case, one or more rapporteurs. At its request, the authority responsible for the agents referred to in Article L. 450-1 designates the investigators and has any investigation carried out without delay that the rapporteur deems useful. The latter defines the orientations of the investigation and is kept informed of its progress. “;
2o A paragraph worded as follows is added:
“A decree specifies the conditions under which, at the reasoned request of the President of the Competition Council, the authority to which the agents referred to in Article L. 450-1 depend makes, for a fixed period, available to the general rapporteur of the Competition Council, investigators to carry out certain investigations, in accordance with the guidelines defined by the rapporteurs. “
– Article L. 450-1 of the Commercial Code is supplemented by a paragraph worded as follows:
“The authorized officials mentioned in this article may exercise the investigative powers they derive from this article and the following articles on the whole of the national territory.”
II.- It is inserted, after article L. 215-1 of the consumer code, an article L. 215-1-1 as follows:
“Art. L. 215-1-1. – The agents of the general direction of competition, consumption and the repression of fraud can exercise the investigative powers that they derive from book II of this code over the entire national territory. “
After article L. 420-6 of the commercial code, an article L. 420-7 is inserted as follows:
“Art. L. 420-7. – Without prejudice to articles L. 420-6, L. 462-8, L. 463-1 to L. 463-4, L. 463-6, L. 463-7 and L. 464-1 to L. 464 -8, disputes relating to the application of the rules contained in Articles L. 420-1 to L. 420-5 and those in which these provisions are invoked are assigned, as the case may be, to the courts of first instance or to the courts trade whose list is fixed by decree. “
After article L. 462-8 of the commercial code, an article L. 462-9 is inserted as follows:
“Art. L. 462-9. – The Competition Council may, within its remit and after prior information to the Minister responsible for the economy, communicate the information or documents that it holds or that it collects, at their request, to the Commission. of the European Communities or to the authorities of other States exercising similar powers, at their request, subject to reciprocity, and on condition that the competent foreign authority is subject to professional secrecy with the same guarantees as in France.
“The Competition Council may, under the same conditions, according to the same procedures and under the same sanctions as those provided for the performance of its mission, conduct or ask the Minister responsible for the economy to conduct investigations, at the request from foreign authorities exercising similar powers, subject to reciprocity.
“The obligation of professional secrecy does not prevent the communication by the competition authorities of the information or documents which they hold or which they collect, at their request, to the Commission of the European Communities and to the authorities of other States exercising similar powers and subject to the same obligations of professional secrecy.
“Assistance requested by a foreign authority exercising similar powers for the conduct of investigations or the transmission of information held or collected by the Competition Council is refused by the latter when the execution of the request is of a nature to undermine French sovereignty, security, essential economic interests or public order or when criminal proceedings have already been initiated in France on the basis of the same facts and against the same persons, or when those – these have already been sanctioned by a final decision for the same facts.
“The competition authorities, as far as their respective powers are concerned, may use information or documents which have been sent to them under the same conditions by the Commission of the European Communities or the authorities of other Member States exercising similar powers.
“The council may, for the implementation of this article, conclude agreements organizing its relations with the authorities of other States exercising similar powers. These agreements are approved by the Board under the conditions provided for in Article L. 463-7. They are published in the Official Journal. “
Article L. 470-6 of the Commercial Code is thus amended:
1o The words: “Articles 85 to 87 of the Treaty of Rome” are replaced by the words: “Articles 81 to 83 of the Treaty establishing the European Community”;
2o A paragraph is added as follows:
“For the application of Articles 87 and 88 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 Article L. 450-1 have the powers which are recognized by Title V of Book IV. “
In paragraph 2 of article 39 of the general tax code, the words: “prices” are replaced by the words: “freedom of prices and competition”.