Competition, Distribution And Consumer Law

Author:Ms Anne-Laure-Hélène des Ylouses and Franck Veisse
Profession:Field Fisher Waterhouse

On the one hand, the Macron Law provides for new procedural measures in matters of competition law, and on the other, for the distribution sector.

The procedure before the French Competition Authority (hereafter ''FCA") is subject to the following modifications:

Increasing powers for the inspectors of the FCA in charge of antitrust investigations The Macron Bill provided that, within antitrust investigations, the FCA shall be given access to and the right to request a copy of detailed invoices and connection data stored and processed by electronic communications operators. The right to access and request a copy of connection data was invalidated by the Constitutional Council as too extensive an investigation power in the lack of legally provided guarantees to ensure the respect of privacy rights. The invalidation of this provision does not affect however the access and right to request a copy of detailed invoices by the FCA investigators within antitrust investigations. The French "no-challenge" procedure becomes a "transaction" procedure The current "no-challenge" procedure before the FCA will be henceforth entitled "transaction" procedure and its regime will be similar to the existing transaction procedure before the European Commission. Within this new procedural framework, companies which do not challenge the objections notified to them will be immediately informed by the FCA of the maximum amount of the proposed penalty. The maximum fine incurred will be, nevertheless, raised to 10% of the worldwide turnover of the company concerned, compared to 5% under the previous regime of the "no-challenge" procedure. The modification of the certain merger control rules The FCA adopts complementary dissuasive and incentive procedural instruments within the merger control regime. Like the Commission, the FCA will be enabled to "stop the clock" starting from phase 1, and not only during phase 2, what was previously the case. The merger controllability thresholds will be modified for operations realised in the overseas departments and regions. From now on, for the calculation of such thresholds, the FCA will refer to the turnover realised by the concerned parties in all overseas departments and regions rather than in the sole department or region concerned by the operation. The FCA may impose more stringent penalties in case of non-compliance with commitments undertaken after the authorisation of the merger. The halt to the...

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