New tools for the French watchdog as ECN+ Directive is now fully implemented
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France
As a partner in our competition & EU team in Paris, I specialise in contentious and non-contentious national and European competition law, compliance, commercial and distribution law. I am also active in the anti-bribery and corruption compliance sphere.
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On 26 May this year, a presidential ordinance (the Ordinance) perfected the transposition into French law of the ECN+ European Directive of 11 December 2018, which aims to strengthen the powers of national competition authorities and increase their effectiveness. Several provisions of the directive were already implemented into French law, while others still had to be introduced into French legislation, in particular regarding procedural aspects or the determination of the sanctions that the French Competition Authority (the FCA) can impose.
FCA will prioritise the prosecution of cases it considers more important
The Ordinance strengthens the principle of discretionary prosecution, giving the FCA from now on the possibility to optimise its resources by allocating them to cases regarded as being of major importance and rejecting complaints or referrals which are not considered to be a priority. In addition, the FCA will have the power to impose interim measures in its own discretion without the necessity for a complainant to request such interim measures.
Criminal immunity for individuals in leniency proceedings
The Ordinance also provides that directors and managers of a company that benefited from total immunity from fines under the leniency procedure will now be able to benefit from an immunity from criminal penalties, provided they have actively cooperated with the FCA’s investigation. Previously, such immunity did not officially exist, although the FCA did state in its guidelines that it would not refer the matter to the public prosecutor in such case. The risk of criminal sanction was therefore purely hypothetical but expressly providing for this immunity into French law could therefore further encourage directors and managers of companies to apply for leniency to reveal secret cartels.
A new range of repressive measures
In the context of anti-competitive practices, the FCA will now have the power to issue structural injunctions to companies (e.g. the divestiture of a subsidiary) as long as they are proportionate and strictly necessary to effectively stop the infringement committed.
Moreover, fines imposed on associations including trade unions and professional bodies, which were previously capped at €3 million, can now reach 10% of the worldwide turnover of the association's member companies. As the risk of fines for trade associations has significantly increased, the FCA published a guide earlier this year to help them identify and navigate competition law risks.
Finally, the Ordinance removes the requirement for the FCA to take into account the importance of the damage to the economy caused by the anticompetitive practices to set the amount of fine. From now on, the FCA will only have to take into account the seriousness of the infringement and its duration and the individual situation of the infringers. These changes will lead the FCA to update in the coming months its communication on the method for the assessment of fines, in force since 2011.
For more information, you can consult the FCA’s press release here (in English) and the Ordinance here (in French).
For more information contact Thomas Oster and Eliott Costet.
