French Commercial code
In forceI.-The Autorité de la concurrence may order the parties concerned to put an end to anti-competitive practices within a specified period or impose on them any corrective measure of a structural or behavioural nature that is proportionate to the infringement committed and necessary to effectively put an end to the infringement. It may also accept commitments, for a fixed or indefinite period, proposed by the undertakings or associations of undertakings and likely to put an end to its competition concerns that may constitute prohibited practices referred to in Articles L. 420-1 to L. 420-2-2 and L. 420-5 or contrary to the measures taken pursuant to Article L. 410-3.
It may impose a financial penalty when an undertaking or association of undertakings has committed anti-competitive practices, or in the event of failure to comply with injunctions or commitments that it has accepted. It may, on its own initiative or at the request of the referrer, the minister responsible for the economy or any undertaking or association of undertakings with an interest in acting, amend, supplement or terminate the commitments it has accepted:
a) If one of the facts on which the commitment decision is based has undergone a material change, or
b) If the commitment decision is based on incomplete, inaccurate or misleading information provided by the parties to the proceedings.
Financial penalties are assessed in the light of the seriousness and duration of the infringement, the situation of the association of undertakings or the undertaking penalised or of the group to which the undertaking belongs and any repetition of practices prohibited by this Title. Penalties are determined individually for each undertaking or body penalised and reasons are given for each penalty. The Competition Authority may decide to reduce the amount of the financial penalty imposed on an undertaking or body where that undertaking or body has, in the course of proceedings before the Authority, paid the victim of the sanctioned anti-competitive practice(s) compensation due in execution of a settlement within the meaning of Article 2044 of the Civil Code.
The maximum amount of the penalty is, for an undertaking, 10% of the highest worldwide turnover excluding tax achieved during one of the financial years closed since the financial year preceding that in which the practices were implemented. If the accounts of the undertaking concerned have been consolidated or combined pursuant to the texts applicable to its corporate form, the turnover taken into account is that shown in the consolidated or combined accounts of the consolidating or combining undertaking.
The maximum amount of the sanction is, for an association of undertakings, 10% of the amount of the highest worldwide turnover excluding tax achieved during one of the financial years closed since the financial year preceding that during which the practices were implemented.
Where the infringement by an association of undertakings relates to the activities of its members, the maximum amount of the financial penalty is equal to 10% of the sum of the total worldwide turnover achieved by each member active on the market affected by the association's infringement.
However, the financial liability of each undertaking in respect of the payment of the penalty may not exceed the maximum amount fixed in accordance with the fourth paragraph.
The Competition Authority may order the publication, dissemination or display of its decision or an extract therefrom in the manner it specifies. It may also order the inclusion of the decision or an extract therefrom in the report drawn up on the operations of the financial year by the company's managers, board of directors or management board. The costs are borne by the interested party.
Companies or groups of companies that have been the subject of an injunction by the Autorité de la concurrence because of practices contrary to the measures taken pursuant to Article L. 410-3 must publicise this injunction by publishing it, at their own expense, in the local daily press, in accordance with the procedures specified by the Autorité de la concurrence. This publication must mention, where applicable, the existence of any appeal lodged against the injunction.
II.-The Competition Authority may impose on the parties concerned periodic penalty payments of up to 5% of the average daily total worldwide turnover, per day of delay from the date it sets, in order to compel them:
a) To comply with a decision that has obliged them to put an end to anti-competitive practices, to comply with a decision that has imposed specific conditions or to comply with a decision that has made a commitment binding pursuant to I;
b) To comply with the measures ordered pursuant to Article L. 464-1.
The turnover taken into account is calculated on the basis of the company's accounts relating to the last financial year closed on the date of the decision. The astreinte is liquidated by the Autorité de la concurrence, which sets the final amount. If the accounts of the undertaking concerned have been consolidated or combined pursuant to 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 undertaking.
III.-Where an association of undertakings or an undertaking does not contest the reality of the objections notified to it, the rapporteur general may submit to it a proposal for a settlement setting the minimum and maximum amounts of the financial penalty envisaged. If the undertaking or association of undertakings undertakes to change its conduct, the General Rapporteur may take this into account in his settlement proposal. If, within a period set by the general rapporteur, the undertaking or association of undertakings agrees to the proposed settlement, the general rapporteur proposes to the Autorité de la concurrence, which hears the undertaking or association of undertakings and the Government Commissioner without first drawing up a report, to impose the financial penalty provided for in I within the limits set by the settlement.
IV.A total or partial exemption from financial penalties may be granted to an undertaking or an association of undertakings that has, with others, implemented a practice prohibited by the provisions of Article L. 420-1 if it has helped to establish the reality of the prohibited practice and to identify its perpetrators, by providing information that was not previously available to the Authority or the administration. To this end, the undertaking or association of undertakings may submit the declarations it makes under this procedure in French or in another official language of the European Union agreed between it and the Autorité de la concurrence or the administration. If the undertaking or association of undertakings applies to the rapporteur general for a place in the pecking order in order to benefit from an exemption from financial penalties, this application may be submitted in French or in another official language of the European Union agreed between it and the Autorité de la concurrence or the administration. The General Rapporteur informs the Government Commissioner of the steps taken by the company. He informs the company in writing, where applicable, of its eligibility for total or partial exemption from the financial penalties incurred and informs it of the conditions of cooperation defined by the Competition Authority. When taking a decision pursuant to I of this Article, the Authority may, if these conditions have been met, grant an exemption from the financial penalties proportionate to the contribution made to establishing the infringement. A decree of the Conseil d'Etat shall specify the procedures for the organisation and application of this procedure.
Where a total exemption from financial penalties has been granted to an undertaking or an association of undertakings under the procedure provided for in this IV and where the facts appear to it to justify the application of Article L. 420-6, the Competition Authority will inform the Public Prosecutor and forward the case file to him, mentioning, where appropriate, the natural persons it considers eligible for an exemption from punishment.
V.-Except in cases where law enforcement may be required, where an undertaking or association of undertakings refuses to submit to a visit or fails to comply with a summons or to respond within the prescribed time limit to a request for information or the communication of documents made by one of the agents referred to in I of Article L. 450-1 in the exercise of the powers conferred on it by Titles V and VI of Book IV, the Authority may, at the request of the General Rapporteur, issue an injunction against it accompanied by a penalty payment, up to the limit provided for in II.
Where an undertaking or association of undertakings has obstructed the investigation or inquiry, in particular by providing incomplete or inaccurate information, or by communicating incomplete or misleading documents, the AMF may, at the request of the General Rapporteur, and after hearing the undertaking in question and the Government Commissioner, decide to impose a financial penalty. The maximum amount of the latter may not exceed 1% of the highest worldwide turnover excluding tax achieved during one of the financial years closed since the financial year preceding that in which the practices were implemented.
If the accounts of the undertaking concerned have been consolidated or combined in accordance with the legislation applicable to its corporate form, the turnover taken into account is that shown in the consolidated or combined accounts of the consolidating or combining undertaking.
Where the provisions of the second paragraph are applied, the undertaking or association of undertakings concerned may not be the subject of criminal proceedings in respect of the same acts.
VI.Where a financial penalty is imposed on an association of undertakings taking into account the turnover of its members and the association is not solvent, the Competition Authority may order it to call for contributions from its members to cover the amount of the financial penalty.
In the event that these contributions are not paid in full to the association of undertakings within a period set by the Competition Authority, the latter may directly require payment of the pecuniary penalty by any undertaking whose representatives were members of the decision-making bodies of that association.
Where necessary to ensure full payment of the financial penalty, after requiring payment by these undertakings, the Competition Authority may also require payment of the unpaid amount of the financial penalty by any member of the association that was active on the market on which the infringement was committed. However, such payment is not required from undertakings that demonstrate that they did not apply the contentious decision of the association and were unaware of its existence or actively disassociated themselves from it before the proceedings were initiated.
