Two and a half years after the creation of the settlement procedure, the French Competition Authority (hereinafter the "Authority") published on 27 December 2018 its procedural notice on the conditions for implementing the settlement procedure (the "Notice")1.
The settlement procedure, which resulted from the "loi Macron" of 6 August 20152, replaced the "no contest of objections" procedure, which allowed the Authority to reduce the penalty, at its discretion, in return for the waiver of the right to contest the notified objections. Thanks to the transaction, the company that waives the right to contest the objections can now "bargain" the amount of its penalty: this company will obtain a financial penalty within a range proposed by the General Rapporteur and agreed by the parties.
After twelve settlement decisions issued since the introduction of this procedure, the Authority felt it was time to share its feedback and provide useful clarifications to companies and practitioners.
What is the scope of the settlement procedure?
On a matter of time, the settlement applies to objections notified after 7 August 2015. On the material aspects, the Notice specifies that only anti-competitive practices (anti-competitive agreements, abuse of dominance) and abusively low prices can be the subject of a transaction. Infringements of the merger control provisions are therefore excluded from the transaction, which may be surprising given that in 2016, Altice Luxembourg and SFR had benefited from a settlement procedure3 in their infringement proceedings for having carried out two notified merger transactions in advance.
The Notice specifies that it is possible to combine the settlement procedure with the leniency procedure: the company that has revealed an anti-competitive practice may, in addition to the reduction in the penalty inherent in that disclosure, benefit from an additional reduction if it waives its right to contest the objections. However, in practice, none of the companies benefiting from leniency proceedings had so far contested the notified objections. In fact, obtaining a double reduction or an increased reduction is uncertain because the Notice specifies that such a reduction is left to the discretion of the case handler.
How is the transaction procedure implemented?
The Authority recommends to sought for the benefit of the transaction before the communication of the statement of objections. In practice, this may turn out complicated for...