Christophe Lemaire

University of Paris I Panthéon-Sorbonne, Ashurst (Paris)
Professor / Lawyer (Partner)

Christophe Lemaire practises in the Ashurst’s Competition and EU law department in Paris. He specialises in antitrust law, mergers, state aid and regulatory matters. Christophe was Rapporteur permanent and Counsel for European Affairs at the French Competition Council (2003-2006). He worked in the legal department of the French Ministry for Foreign Affairs (Community and international economic law division) where he was in charge of competition affairs and network industries, in particular representing the French government before the Court of Justice (2002-2003). He is also Senior Lecturer in French and European competition law and regulatory law at the University of Paris I (Panthéon-Sorbonne).

Linked authors

University Paris II Panthéon‑Assas
University of Paris I Panthéon-Sorbonne
DG COMP (Brussels)
Université Jean Moulin - Lyon III
Transport For London (TFL)
Jones Day (Brussels)
Jones Day (Brussels)
Les Républicains

Articles

3906 Bulletin

Christophe Lemaire, Michaël Cousin The Paris Court of Appeal annuls dawn raids conducted by the Competition Authority to find evidence of an alleged price-fixing cartel in the domestic appliance sector (Whirlpool)

106

On 8 July 2020, the Paris Court of appeal ("the Court") annulled dawn raids conducted by the French Competition Authority ("the FCA") at Whirlpool’s premises in 2014. On 27 and 28 May 2014, the FCA raided Whirlpool’s premises to find evidence of an alleged price-fixing cartel in the domestic (...)

Michaël Cousin, Christophe Lemaire The French Competition Authority issues a fine totalling €1.1 billion on a big tech company for having implemented vertical agreements with some of its distributors and for abuse of economic dependency against its independent premium resellers (Apple / Tech Data / Ingram Micro)

117

On 16 March 2020, the French Competition Authority ("FCA") announced that it had fined Apple EUR1.1 billion, the highest fine ever imposed to an undertaking, for having implemented vertical agreements with certain of its distributors and an abuse of economic dependency against its independent (...)

Christophe Lemaire, Michaël Cousin The Paris Court of Appeal confirms the French Competition’s Authority decision to fine several producers and wholesalers active in the sale of liquid fertilizers for domestic cultivation for imposing vertical restraints (Canna France)

24

On 16 January 2020, the Paris Court of Appeal confirmed the 2018 decision of the French Competition Authority ("FCA") to fine several producers and wholesalers active in the sale of liquid fertilizers for domestic cultivation for having imposed vertical restraints. WHAT YOU NEED TO KNOW - KEY (...)

Christophe Lemaire, Michaël Cousin The French Competition Authority fines a group of road transport companies for organising customer allocation practices among its members (Astre)

15

On 28 October 2019, the French Competition Authority ("FCA") fined a group of road transport companies for having organised customer allocation practices among its members. Astre did not challenge the FCA’s objections and applied for settlement. WHAT YOU NEED TO KNOW - KEY TAKEAWAYS On 27 (...)

Christophe Lemaire, Michaël Cousin The French Competition Authority sanctions €176,000 a consumer goods corporation and its wholesaler for implementing exclusive import agreements in overseas territories (Procter & Gamble / Coty / Chanel)

18

On 8 October 2019, the French Competition Authority ("FCA") sanctioned Procter & Gamble ("P&G"), Coty and Chanel, as well as their wholesalers, €176,000 for having implemented exclusive import agreements in overseas territories. WHAT YOU NEED TO KNOW - KEY TAKEAWAYS Since March 2013, (...)

Christophe Lemaire A French commercial tribunal rules on its own competence to decide on a competition related issue in spite of the new courts’ competition specialisation (Quaron/Roquette Frère)

3256

Court of first instance of Béthune, Commercial division (Tribunal de Grande Instance de Béthune (TGI)), April 4th 2007, SA Quaron vs. SA Roquette Frère (Not yet published; on-line publication expected for the 5th September at the lattest) In this case, Quaron company summoned Roquette Frères (...)

397252 Review

Christophe Lemaire, Anne Dos Abuse of dominance: The European Commission invites interested third parties to comment the commitments proposed in various TV set-top box and modem chipset markets (Broadcom)

52

On 27 April, the European Commission submitted for consultation Broadcom’s proposed commitments on the markets for chipsets for TV decoders and modems, pursuant to Article 27 of Regulation 1/2003. The context that led to the proposal for commitments As a reminder, in June 2019, the Commission (...)

Christophe Lemaire, Marie Florent Commitments: The French Competition Authority accepts and makes binding commitments to address competition concerns identified in the parcel delivery sector (La Poste)

35

On 2 April 2020, the Competition Authority accepted and made binding the commitments offered by the La Poste group in the parcel delivery sector and therefore closed the proceedings initiated before it in 2010, following two referrals made by the Minister for Economic Affairs and by a relay (...)

Christophe Lemaire, Adèle Azzi Business secrets: The French Administrative Supreme Court declines jurisdiction to deal with an appeal against a decision of the French Competition Authority to include, within its interim measures decision, information that has benefited from the protection granted to business secrets (Google)

95

The period is decidedly rich with regard to the litigation surrounding the protection of business secrecy of companies. After the two rulings of the Court of Cassation of 29 January 2020 (see above), the Court of Appeal has now decided that the protection of business confidentiality is a matter (...)

Christophe Lemaire, Anne Dos Dawn raids: The French Supreme Court confirms the validity of the use of "provisional closed seals" technique and the seizure of entire mailboxes in the context of an investigation into misleading commercial practices (Renault)

81

In a decision dated 4 March 2020, the Criminal Division of the Court of Cassation confirmed and specified the procedures for conducting [OVS visits and seizures] authorized by the liberty and detention [judge (juge des libertés et de la détention JLD]) in the context of an investigation ordered (...)

Christophe Lemaire, Adèle Azzi Breach of commitments: The French Competition Authority adopts a new decision in relation to the violation of commitments adopted in anticompetitive practices (Mutualité de La Réunion)

84

The period under review is marked not only by the publication of a study on commitments (see above) but also by the adoption by the Competition Authority of a new decision on the non-compliance of commitments entered into in the area of anti-competitive practices. These decisions, although few (...)

Christophe Lemaire, Hélène Fricaudet Business secrets: The French Supreme Court clarifies the conditions under which the General Rapporteur of the French Competition Authority may disclose business secrets, in particular with respect to the obligation to state reasons (General Import, Randstad)

122

On 29 January 2020, the Court of Cassation handed down two judgments specifying the obligations incumbent on the Authority’s General Rapporteur when he decides to lift the protection previously granted to documents in the investigation file under the secrecy of business. Although the facts (...)

Christophe Lemaire, Hélène Fricaudet Behavioural commitments: The French Competition Authority publishes a study on behavioural commitments relating to anti-competitive practices and mergers

70

As part of an educational approach and to reflect on its practice, the Competition [Authority] published on 17 January 2020 a study dedicated to behavioural commitments, an instrument that has become a major instrument in the implementation of competition law. Written in partnership with the (...)

Christophe Lemaire, Marie Florent Dawn raids: The First President of the Paris Court of Appeal reiterates various principles applicable to dawn raids operations authorised on the basis of Article L. 450-4 of the French Commercial Code and confirms their application to the notarial sector (ADSN, CSN, Jean Goyet)

57

By two orders dated 11 December 2019, the First President of the Paris Court of Appeal had the opportunity to rule on the regularity of OVS] inspection and seizure [operations in the notarial sector. The cases before this magistrate were all related to an order issued in support of a request (...)

Christophe Lemaire, Hélène Fricaudet Investigations: The French Competition Authority sees its investigative powers strengthened following the publication of the decree implementing the law for the growth and transformation of undertakings (Decree n° 2019-1247)

82

While Act No. 2019-486 of 22 May 2019 relating to the growth and transformation of enterprises, commonly referred to as the PACTE Act, granted Competition Authority and DGCCRF officials in charge of investigating alleged anti-competitive practices the possibility of accessing the connection (...)

Christophe Lemaire, Hélène Fricaudet Commitments: The French Competition Authority submits to public consultation the proposed commitments regarding practices likely to constitute an abuse of dominant position in the sector of control accessories compatible with a video game console (Sony)

95

In the context of the investigation of a referral by an operator active in the PlayStation 4 compatible control accessories sector of practices implemented by the Sony group on the market for eighth-generation static video game consoles and PlayStation 4 compatible control accessories, the (...)

Christophe Lemaire, Marie Florent Settlement: The French Competition Authority fines a group of road freight transport companies for having organised customer allocation practises among its members and, on that occasion, specifies the conditions for the application of the settlement procedure (Astre)

127

On 28 October 2019, the Competition Authority imposed a fine on a group of small and medium-sized enterprises active in road haulage for having organised practices of customer allocation among its members, through two of its entities, Astre Coopérative and Astre Commercial. On this occasion, the (...)

Christophe Lemaire, Marie Florent Commitments: The French Competition Authority submits to public consultation the proposed commitments regarding practices likely to constitute an abuse of dominant position in the parcel delivery sector (La Poste)

136

In the context of the investigation of two referrals made almost ten years ago by the Minister for Economic Affairs and a relay point parcel delivery operator (the Belgian company Kiala) concerning practices allegedly implemented by the La Poste group in the parcel delivery sector, the (...)

Christophe Lemaire, Marie Florent Limitation period: The Paris Administrative Court rejects the damages action introduced by the Ile-de-France region against the authors of an anticompetitive agreement regarding a public procurement procedure as time-barred (Région Île-de-France)

303

On 29 July 2019, the Paris Administrative Court had to rule on the admissibility of an action for damages brought by the Île-de-France region in the now famous Île-de-France high school public procurement case. On this occasion, the Administrative Court rejected the request made by the (...)

Christophe Lemaire, Marie Florent Competition policy: The French Competition Authority and the General Directorate for Competition Policy, Consumer Affairs and Fraud Control adopt a new cooperation charter

131

On 23 July 2019, the Competition Authority and the Directorate General for Competition, Consumer Affairs and Fraud Control (DGCCRF) announced the adoption of a joint cooperation charter. This charter is a direct response to one of the recommendations made by the Court of Auditors on 14 March (...)

Christophe Lemaire, Adèle Azzi Dawn raids: The French Supreme Court considers that an undertaking is "implicated" in a dawn raid and therefore has a right to an effective appeal, so that the minutes and inventory of the previous dawn raid must be annexed both to the request and to the court order (Whirlpool)

186

The ruling handed down by the Court of Cassation on 13 June 2019 in the Whirlpool case is interesting in several respects. First of all, it recalls the importance of the right to an effective remedy, thus echoing the position expressed a few years ago by the European Court of Human Rights in (...)

Christophe Lemaire, Julie Bousin Admissibility: The Paris Court of Appeal declares admissible for the first time an appeal lodge against a settlement decision by the beneficiary of this procedure (Alcyon)

133

There are still very few judgments on the settlement procedure under French law and no doubt the judgment handed down by the Paris Court of Appeal on 13 June 2019 will attract attention. The Court of Appeal has declared admissible for the first time an appeal against a decision rendered at the (...)

Christophe Lemaire, Julie Bousin Sanction: The French Competition Authority fines a company for breach of seals for the first time and for alteration of an electronic messaging service (Akka)

162

This case is noteworthy in several respects. On the one hand, this is a new sanction decision for a "procedural" infringement. Such decisions - whether at national or European level, and whether in the field of anti-competitive practices or merger control - have tended to increase in recent (...)

Christophe Lemaire, Julie Bousin Constitutional review: The Constitutional Council partially censors provisions of the “PACTE” Law related to the implementation of competition law (PACTE Law)

135

Law No 2019-486 of 22 May 2019 on the growth and transformation of enterprises was published in the Official Journal of 23 May 2019 (hereinafter the ’PACTE Law’). This publication follows the decision of the Constitutional Council of 16 May 2019 (Dec. No. 2019-781 DC), which declared certain (...)

Christophe Lemaire, Clara Guillaumond Commitments: The European Commission adopts a commitment decision in relation to inter-regional interchange fees (Visa, Mastercard)

142

Inter-regional interchange fees (hereinafter the ’Inter-regional MIF’) are fees applied to payments made within the European Economic Area (hereinafter the ’EEA’) using consumer debit and credit cards issued outside the EEA. The MasterCard and Visa networks set the level of the inter-regional MIFs (...)

Christophe Lemaire, Clara Guillaumond Admissibility: The French Competition Authority rejects a referral for lack of evidence and because the claimant has by its behaviour prevented the investigation services from carrying out the inspections (CUB)

111

This decision is a new decision to dismiss the complaint (the fifth since the beginning of 2019). It is not so much the reasons for the rejection that are of interest here (the Authority concluding that there is insufficient evidence) as the Authority’s reproach of the complainant’s behaviour (...)

Christophe Lemaire, Elise Nachbaur Commitments: The European Commission accepts commitments offered by four US film studios and one TV broadcaster on cross-border pay-TV services (Disney, NBCUniversal, Sony Pictures, Warner Bros., Sky)

126

After a market test, the Commission considered that the package of commitments offered by Disney, NBC Universal, Sony Pictures, Warner Bros and Sky UK in November and December 2018 removed the competition concerns identified by the Commission. As a reminder, the competition concerns expressed (...)

Christophe Lemaire, Clara Guillaumond "Fadets": The Senate reintroduces the amendment allowing the government to transpose the ECN+ Directive and pass an amendment allowing officials of the French Competition Authorities to be provided with the "fadets" (PACTE draft bill)

177

Whereas the Senate had deleted the article authorising the government to transpose the ECN+ directive by means of an order, the Senate has just reinstated this amendment and is taking the opportunity to adopt an amendment authorising the agents of the competition authorities to be communicated (...)

Christophe Lemaire Injunction : The Paris Court of Appeal grants an application for suspension of the operation of a decision of the French Competition Authority which fined an undertaking de facto restricting its online sales of dangerous products (Stihl)

232

By application lodged at the Registry of the Paris Court of Appeal on 21 November 2018, Andreas Stihl SAS and Stihl Holding AG&CO KG ("Stihl") applied for a stay of execution of Decision No. 18-D-23 of the French Competition Authority ("the Authority") dated 24 October 2018 after having (...)

Christophe Lemaire, Elise Nachbaur Settlement: The French Competition Authority publishes its procedural notice on the new settlement procedure (Procedural notice "Settlement")

174

The publication by the Autorité de la concurrence of its procedural notice on the settlement procedure ("communiqué Transaction") on 27 December 2018 ratified the new French settlement regime which succeeds the former procedure for non-contestation of objections. The communiqué states that it has (...)

Christophe Lemaire, Hélène Fricaudet Priority question on constitutionality: The French Supreme Court considers that French legal provisions, on the one hand prohibiting abuses of dominant position and, on the other hand, imposing criminal sanctions on individuals, are both in line with the principle of nullum crimen, nulla poena sine lege (M. X e.a.)

155

Article L. 420-6 C. com. has long been of concern (see Cl. Lucas de Leyssac, L’inquiétant article L. 420-6 C. com., in La sanction des pratiques anticoncurrentielles par recours à l’article L. 420-6 C. com., 5e journée Christian Gavalda, Concurrences No. 1-2008, p. 21). The recent ruling of the (...)

Christophe Lemaire, Alexandre Lacresse, Julie Bousin Competition policy: The European Parliament and the Council adopt the ECN+ Directive which reinforces the institutional and procedural convergence within the European Competition Network (Directive 2019/1)

321

One recalls that about two years ago, the Commission made public a proposal for a directive aimed at providing NCAs with the means to implement the competition rules more effectively (see Ch. Lemaire, ECN: The European Commission makes public a proposal for a directive aimed at providing NCAs (...)

Christophe Lemaire, Elise Nachbaur Commitments: The European Commission renders legally binging commitments offered by German grid operator in the market of transmission of electricity (TenneT)

75

Following the market test launched in March 2018, the Commission, by a decision of 7 December 2018, made the commitments offered by TenneT legally binding. The proposed commitments aim to resolve the competition concerns identified by the Commission regarding TenneT’s behaviour in severely (...)

Christophe Lemaire, Hélène Fricaudet Leniency plus: The French Competition Authority awards, in the framework of a settlement procedure, a higher fine reduction than the one envisaged in its leniency opinion and applies, for the first time, the concept of ’leniency plus’ (White goods)

212

The Decision of the Competition Authority (hereinafter the ’Authority’) of 5 December 2018 on practices in the household appliances sector is an important decision in the context of the implementation of leniency at national level. Indeed, in addition to the fact that, in the present case, the (...)

Christophe Lemaire, Julie Bousin ECN+: The French Parliament discusses the PACTE draft bill and publishes a report on the evaluation of the Macron Law, which provide for measures to empower the French Competition Authority and the Directorate General for Competition Policy, Consumer Affairs and Fraud Control to be more effective enforcers (Law n° 2015-990)

191

The period under review saw the presentation before or by Parliament of two initiatives that deserve to be reported here, although their future is uncertain at the moment given the very recent position adopted by the Senate. On the one hand, during the night of 14 to 15 September 2018, the (...)

Christophe Lemaire, Elise Nachbaur Commitments: The European Commission submits to a market test commitments offered by six major film studios and a pay TV broadcaster in pay tv investigation (Disney; NBCUniversal, Sony Pictures, Warner Bros, Sky)

73

More than two years after the Commission decision making the commitments offered by Paramount legally binding, the Commission is again market testing the commitments offered, this time by Disney (on 25 October 2018) and by NBC Universal, Sony Pictures, Warner Bros and Sky UK (on 12-13 December (...)

Christophe Lemaire, Jocelyn Goubet Commitments: The French Supreme Court clarifies the method of assessment in the case of a breach of commitments submitted before the French Competition Authority (Les Indépendants)

146

While sanction decisions for non-compliance with commitments in the area of anti-competitive practices are relatively rare (for a recent review, see Concurrences No. 4-2018, obs. Ch. Lemaire and H. Fricaudet, p. 173), the year 2018 continues to fuel the debate. Indeed, after the recent sanction (...)

Christophe Lemaire, Marie Florent Commitments: The French Competition Authority renders legally binding commitments aiming to cure competition concerns regarding practices likely to constitute an abuse of dominant position in the sector for the commercialisation of decoders for satellite television broadcasts (Commercialisation of decoders for satellite television broadcasts)

480

On July 24, 2018, the French Competition Authority accepted and made binding the commitments proposed by Groupe Canal Plus (GCP). It thus closed the proceedings initiated before it in September 2014, following a referral made by a satellite decoder manufacturer, Aston France, concerning (...)

Christophe Lemaire, Marie Florent Leniency: The French Supreme Court confirms the principle that the application for leniency made by a subsidiary does not benefit to its former parent company, since the latter no longer held it at the time of filing this application (GEA Group)

167

The issue of intra-group relations is a complex subject in competition law, particularly when groups evolve and restructure during or following anti-competitive practices (see on this subject, Ch. Lemaire, Responsabilité concurrentielle des groupes de sociétés, Contrats, Conc., Consom., July 2017, (...)

Christophe Lemaire, Hélène Fricaudet Breach of commitments: The French Competition Authority sanctions the breach of commitments made binding by the French Competition Authority in the context of a settlement procedure (Randstad)

168

The period under review provides a further illustration of a sanction by the Competition Authority for failure to comply with commitments entered into by an undertaking in the context of a procedure for non-contestation of objections. Decisions are still relatively rare, since - unless I am (...)

Christophe Lemaire, Julie Bousin Commitment proposal: The French Competition Authority submits commitments to public consultation in the sector decoders for digital satellite television broadcasts to answer competition concerns regarding practices likely to hinder competition (Decoders for digital satellite television broadcasts)

229

On April 5, 2018, the French Competition Authority published the commitments proposed by Groupe Canal Plus (GCP) to address the competition concerns identified in the market for the marketing of satellite television signal decoders. This procedure is part of the investigation into a referral, (...)

Christophe Lemaire, Julie Bousin Right of defence: The Paris Court of Appeal declares an inspection decision void because of the impossibility for the company to request the immediate and effective assistance of a lawyer (Darty and Fils)

187

This order is in line with a series of previous decisions confirming the importance of the role of counsel in access and seizure operations from the outset. Following a lengthy procedure and in the context of a referral after cassation, the Paris Court of Appeal, in its order of March 3, 2018, (...)

Christophe Lemaire, Marie Florent Dawn raids: The French Supreme Court reaffirms the full applicability of the common law on dawn raids to press and audiovisual communication companies and recalls certain principles on the legality and the conduct of such investigations (Free Mobile, Free, Iliad)

173

In two rulings of 21 March 2018, the Court of Cassation notably reaffirmed the full applicability of ordinary law on access and seizure operations to press and audiovisual communication companies, by dismissing appeals against two orders issued by the First President of the Paris Court of (...)

Christophe Lemaire Public consultation: The French Competition Authority issues a draft procedural notice on settlement procedure and launches a public consultation (Settlement procedure)

181

After announcing it in a press release dated October 19, 2017 (Aut. conc., October 19, 2017 press release on the settlement procedure and compliance programs, Concurrences No. 1-2018, obs. Ch. Lemaire and S. Naudin), the Competition Authority published, on 8 March 2018, a draft procedural (...)

Christophe Lemaire Commitments: The French Competition Authority renders legally binding commitments in the sector for the production and marketing of fresh meat in Martinique aiming to put an end to practices that could create distortion of competition (Production and marketing of fresh meat in Martinique)

108

On 20 February 2018, the Competition Authority accepted and made binding the commitments offered by the Association Martinique Interprofessionnelle de la Viande, du bétail et du lait (AMIV), and closed the proceedings initiated before it in May 2017, following a referral accompanied by a request (...)

Christophe Lemaire, Simon Naudin Individual competence of the President of the French competition authority or its delegate: The French Supreme Administrative Court refers to the French Constitutional Council a request for a preliminary ruling on the constitutionality of the individual power of the President of the French Competition Authority (or its delegate) to adopt decisions on the execution or amendment of commitments (Fnac Darty)

130

After the interim relief judge of the Conseil d’État, it is now at the level of the Constitutional Council that the turmoil of the execution of the commitments undertaken by the Fnac Darty group will be felt in order to see the merger between the two entities authorised (Aut. conc., dec. no. (...)

Christophe Lemaire, Simon Naudin Adversarial principle: The Paris Court of Appeal rules that a decision of the French Competition Authority’s College ordering further investigations in order to allow the investigation services to remedy an omission in the case file provided to the parties does not breach any procedural rule (GIF)

216

In a judgment of 18 January 2018 handed down on appeal against the decision of the Competition Authority (’the Authority’) in the Professional Kitchen Equipment case (on this decision, see, Ch. Lemaire, S. Naudin, The Competition Authority publishes - seven months after their adoption - its first (...)

Christophe Lemaire, Simon Naudin Commitments: The French Competition Authority accepts and makes legally binding commitments in the sector for collection and valorisation of companies’ common waste (Sector for collection and valorisation of companies’ common waste)

129

On 21 December 2017, the Competition Authority accepted and made binding the commitments proposed by La Poste group in the sector of collection and recovery of non-hazardous business waste, and closed the procedure initiated before it in April 2013, following a referral submitted by the (...)

Christophe Lemaire, Simon Naudin Interest to act: The Paris Court of Appeal clarifies the interest to act of consumer organisations and rules that there is no breach of the impartiality principle if some members of the French Competition Authority’s College ruled on the merits while they had previously decided to open initial proceedings or issued a sector opinion (Crédit lyonnais)

118

In its ruling of 21 December 2017 in the case of interbank commissions for the exchange of cheque images, the Paris Court of Appeal rejected several procedural grounds raised by the offending companies. While most of these means ventured on land relatively "marked out" in jurisprudence (...)

Christophe Lemaire, Sarah Chikh Obstruction to investigation: The French Competition Authority fines for the first time a company for having obstructed its investigation (Brenntag)

245

French jurisprudence has a few long-running cases... The "Brenntag" case in the chemicals sector should undoubtedly join them. Indeed, we remember that after having referred the matter to the DGCCRF in 2001, the company Gaches Chimie referred the matter to the Competition Council in 2003 (more (...)

Christophe Lemaire, Simon Naudin Commitments proposal: The French Competition Authority submits for public consultation commitments proposed to remedy competition concerns in the sector for fresh meat production and commercialisation in Martinique island (French Overseas Territory)

106

On 29 November 2017, the Competition Authority published the commitments proposed by the Association Martinique Interprofessionnelle de la Viande, du bétail et du lait (AMIV) to address the competition concerns identified in the market for the production and marketing of fresh meat in (...)

Christophe Lemaire, Simon Naudin Exchanges of in-house lawyers: The First president of the Paris Court of Appeals annuls the seizure of in-house lawyers’ emails summarizing a legal opinion provided by an attorney but considers that this does not affect the validity of the inspections (Whirlpool)

329

The period under review is marked by the order of 8 November 2017 issued by the First President of the Paris Court of Appeal concerning the conduct of searches on the premises of the Whirpool company and, more specifically, the seizure of documents covered by solicitor-client privilege. The (...)

Christophe Lemaire, Sarah Chikh Hybrid settlement procedure: The Paris Court of Appeal validates the procedure followed by the French Competition Authority in the frame of an hybrid settlement procedure (Caisse des dépôts et consignations)

209

In this case, SCET, as the perpetrator, and the Caisse des dépôts et consignations group, as the parent entity, were jointly and severally fined 560,000 euros for having reached an agreement with SETIS, a subsidiary of the Degaud Group, when the land assistance contract was awarded to the (...)

Christophe Lemaire, Simon Naudin Communication on the calculation of fines: The French Competition Authority adopts a communication revoking the principle according to which commitments consisting in the enforcement of a compliance program justify, subject to conditions, a reduction of the fine and thus repeals the corresponding framework document (Settlement procedure and compliance programs)

252

The Authority issued a press release on 19 October 2017 on the settlement procedure and compliance programmes. While its stated objective is to revise various reference texts of the Authority to incorporate the replacement of the old procedure for non-contestation of grievances by the new (...)

Christophe Lemaire, Simon Naudin Commitments: The French Competition Authority revokes de facto (just before its official revocation in a subsequent communication) the principle according to which commitments consisting in enforcement of a compliance program justify, subject to conditions, a reduction of the fine (Sector for resilient and textile floorings)

144

On October 18, 2017, the AMF adopted a settlement decision that marks a break in its approach to compliance programme implementation commitments - and which led it to formally withdraw its framework document on the subject the very next day (see our comment above on the October 19, 2017 press (...)

Christophe Lemaire, Simon Naudin “Re-opened” judgment: The French Supreme Court comes back on its judgment delivered by its commercial chamber on Nov. 8th 2016 in the flour case due to a mistake non imputable to parties (Axiane meunerie)

368

On October 4, 2017, on referral of its own motion, the Commercial Chamber of the Court of Cassation issued a so-called "de rabat" ruling, in which it reversed a previous ruling, issued on November 8, 2016, in that it contains a procedural error not attributable to the parties in question which, (...)

Christophe Lemaire, Julie Tirtiaux Commitments: The French Competition Authority accepts and make legally binding commitments in the energy sector regarding market offer prices (Engie)

186

On 7 September 2017, the French Competition Authority accepted and made binding the commitments proposed by ENGIE in the energy sector, and closed the proceedings initiated before it in October 2015, following a referral with a request for protective measures submitted by the company Direct (...)

Christophe Lemaire, Julie Tirtiaux Pricing and non-pricing practices: The French Competition Authority submits commitments to public consultation in the sector for collection and recycling of companies’ wastes aiming to remedy to pricing and non-pricing practices likely to create a foreclosure effect (La Poste)

135

On 5 September 2017, the Competition Authority published the commitments proposed by the La Poste group to address the competition concerns identified by the Authority on the market for the collection and recycling of ordinary business waste. These proceedings were initiated following a (...)

Christophe Lemaire, Julie Tirtiaux Failure to settle: The French Competition Authority fines a funeral undertaking after it refrained from following up on the settlement proposal of the DGCCRF (Pompes funèbres)

186

It should be noted that the decision of the Competition Authority of 27 July 2017 imposing a penalty of 80,000 euros on the undertaker COMTET was published during the period under review. While there is nothing unusual about this decision, it is nevertheless worth mentioning insofar as the (...)

Christophe Lemaire, Julie Tirtiaux Commitments: The French Competition Authority accepts and make legally binding commitments in the sugar sector regarding market foreclosure practices (L’approvisionnement en betteraves sucrières)

114

By a decision of 26 July 2017, the French Competition Authority accepted and made binding the commitments proposed by Tereos in the sugar beet supply sector, and closed the proceedings initiated before it in 2016, following a referral accompanied by a request for interim measures submitted by (...)

Christophe Lemaire, Simon Naudin Rights of defence: The French Supreme Court rules that the company subject to a dawn raid does not have the right to refer incidents directly to the competent judge during inspections but only to request its intervention through police officers (ITM Alimentaire International)

204

In two rulings dated 28 June 2017, the Criminal Chamber of the Court of Cassation set strict limits on the possibility for companies that have been searched to obtain, during the visit and seizure operations, an intervention by the Judge of Liberties and Detention ("JLD") under whose authority (...)

Christophe Lemaire Proposed commitments: The French Competition Authority submits to public consultation the proposed commitments regarding tied sales practices in the sector of electrical equipment maintenance (Schneider Electric)

180

On 21 June 2017, the Competition Authority published the commitments proposed by Schneider Electric, active in the maintenance of medium and low-voltage electrical distribution equipment, in order to address the competition concerns identified by the Authority during the investigation of the (...)

Christophe Lemaire Commitments: The French Competition Authority accepts and makes legally binding commitments in the field of preventive archaeological excavations and pre-excavation diagnosis (Preventive archaeology)

122

Following the market test launched in December 2016, the Competition Authority has made the commitments proposed by the National Institute for Preventive Archaeological Research (INRAP) legally binding. These commitments were intended to remedy competition concerns identified by the Authority (...)

Christophe Lemaire Adversarial principle: The Paris Court of Appeal clarifies the conditions for the application of the adversarial principle when new evidence is presented in session by the investigating services (Laïta)

174

The judgment handed down by the Paris Court of Appeal on 23 May 2017 in the yoghurt cartel case has already attracted attention because of the importance of the Court’s reduction in the amount of the penalty. Among the pleas in law raised in these proceedings, one in particular stands out, (...)

Christophe Lemaire Business secrecy: The French Government adopts, on May 5th, 2017, a decree setting out detailed rules on the application of the law dated of 18 November 2016 which has provided to the Paris Court of Appeal exclusive jurisdiction to hear claims regarding business secrecy ( Decree n° 2017-823)

202

Less than six months after the adoption of Act No. 2016-1547 of 18 November 2016, which confers jurisdiction on the First President of the Paris Court of Appeal to hear appeals against decisions refusing protection of business secrecy or lifting the protection granted (see Ch. Lemaire and S. (...)

Christophe Lemaire Dawn raids: The French Supreme Court holds that the company subject to a dawn raid may contact a lawyer upon notification of the order authorising the dawn raids and that there is no need to wait for the sealing to end or to prove a grievance (Samsung ; Darty)

269

The rights of the defence do not wait. Their absolute nature was reaffirmed in a decision of 4 May 2017, in which the Criminal Division of the Court of Cassation recalled that a company that is the subject of a visit and seizure operation must be able to exercise its rights of defence from the (...)

Christophe Lemaire Investigative powers: The French Supreme Court considers that the investigative measures taken on the basis of Article L. 450-3 of the French Commercial Code must not be the subject of an independent judicial remedy and refuses to refer preliminary questions in that regard (Brenntag)

152

The question of the legality of the provisions of article L. 450-3 C. com. continues to be debated. Following the decision of the Constitutional Council of 8 July 2016 declaring paragraph 4 of Article L 450-3 of the Commercial Code to be in conformity with the Constitution, (V. not. G. Decocq, (...)

Christophe Lemaire Proposed commitments: The French Competition Authority submits to public consultation the proposed commitments regarding market foreclosure practices in the sector of sugar beet supply (Tereos)

154

On 7 April 2017, the Competition Authority published the commitments proposed by the Tereos cooperative active in the sugar beet supply sector, aimed at addressing the competition concerns identified by the Authority in the course of the investigation of the case which led to the examination of (...)

Christophe Lemaire Commitments: The French Competition Authority, under the supervision of the European Commission, and nine of its counterparts in the European Union publish a report on the effects of the remedies adopted within the European Union in the online hotel booking sector (Online hotel booking)

135

On 6 April 2017, the European Commission published the results of the work carried out in collaboration with several competition authorities, including the French authority, assessing the effects of the remedies adopted in Europe in the online hotel reservation sector. Following investigations (...)

Christophe Lemaire ECN: The European Commission publishes a proposal for a directive aiming to enable competition authorities to be more effective enforcers of competition rules (ECN + Directive)

343

After the adoption of Regulation 1/2003 some 15 years ago, this proposal for a so-called ECN + Directive marks a new stage in the approximation of competition law in the European Union. Whereas the first text established a convergence rule for the substantive rules and mechanisms for (...)

Christophe Lemaire Massive and undifferentiated seizure: The European Court of Human Rights validates once again massive and undifferentiated seizure practices operated on the basis of Article L. 450-4 of the French Commercial Code, considering that in the present case such practices were in conformity with Article 8 of the European Convention of Human Rights (Janssen-Cilag)

188

The practice of massive and undifferentiated seizures of electronic mail continues to be the subject of much litigation, as shown by this judgment, in which the ECHR found itself examining this practice once again after having done so in its Vinci Construction judgment of 2 April 2015. While (...)

Christophe Lemaire Whistleblower: The European Commission launches a new tool to detect anticompetitive practices by introducing an anonymous whistleblower tool (Anonymous whistleblower tool)

193

On 16 March 2017, the European Commission announced the launch of a new tool allowing individuals to alert the Commission anonymously of any infringement of the competition rules (and in particular of cartels). The brief presentation of this new detection tool on the European Commission’s (...)

Christophe Lemaire, Simon Naudin Settlement: The French Competition Authority publishes a settlement decision whereby it fines for abuse of dominant position a practice of resale price maintenance

238

In its second settlement decision of 2017, the Competition Authority sanctioned the petanque boules manufacturer Obut for an abuse of a dominant position consisting of a practice of fixed prices towards its resellers. The Competition Authority first considered that, with a market share of 80 (...)

Christophe Lemaire, Simon Naudin Assessment of commitments: The French Competition Authority publishes for the first time an assessment on the effectiveness of commitments still binding (Booking.com)

239

On 9 February 2017, the Competition Authority published a progress report on the commitments made by Booking.com in the context of Decision No 15-D-06 of 21 April 2015 concerning the online hotel reservation sector. This report, which comes 18 months after the entry into force of the (...)

Christophe Lemaire, Simon Naudin Defence rights: The Paris court of appeals rules that the inclusion by the French Competition Authority in the case file and in the administrative report, without any redaction or caveat of documents including personal allegations against the attorney of a prosecuted company, breaches this company’s defence rights (GEA Group, Brenntag)

250

Can a lawyer be treated as a litigant like any other in an investigation? One might have thought that this issue was reserved for the current judicial situation in criminal matters and that competition litigation was preserved from it. This would have been wrong, as demonstrated by the decision (...)

Christophe Lemaire, Simon Naudin Single economic entity: The Paris court of appeals extends the annulment of a decision against a subsidiary to its former parent company, refuses the extension of a leniency immunity to the benefit of the former parent company in the same circumstances and clarifies the interest to act of a leniency applicant of lower rank against a leniency opinion issued to an applicant of higher rank (GEA Group, Brenntag)

253

The judgment of the Court of Appeal in the chemical commodities case, already commented on in these columns for its part relating to the violation of the rights of defence found by the Court, is also rich in lessons concerning (i) the procedural implications of the joint and several liability (...)

Christophe Lemaire, Simon Naudin Settlement: The French Competition Authority published its fifth decision of settlement for practices implemented in fine dining sector (Atelier du vin)

157

On 26 January 2017, the French Competition Authority ordered Sanbri SAS to pay a fine of 3,200 euros for having reached an agreement with some of its Internet distributors regarding the resale price of products relating to wine tasting manufactured by Sanbri and marketed under the brand name (...)

Christophe Lemaire, Sarah Chikh Business secrets: The French Parliament adopts the act of 18 November 2016 centralising the litigation procedures regarding business secrets to the benefit of the Paris Court of Appeal (Modernisation of the XXI century’s justice)

229

A little more than ten years after the first in-depth reform of business secrecy in competition proceedings (V. Ch. Lemaire, "La protection du secret des affaires devant la Conseil de la concurrence: une évolution bienvenue", JCP éd. E 26 January 2006, No. 4, pp. 191-201), the adoption of the Act (...)

Christophe Lemaire Commitments: The European Commission adopts a decision that renders legally binding commitments to licence inputs for credit default swaps (CDS - Information market)

118

Following the market test launched in April 2016, the Commission has made legally binding commitments offered by the International Swaps and Derivatives Association (ISDA - a professional organisation representing more than 850 financial institutions) and Markit. The commitments were designed (...)

Christophe Lemaire, Sarah Chikh Non-compliance with commitments : The Paris Court of Appeal confirms the principle of a strict interpretation of the commitments made binding by the French Competition Authority and the serious sanctions applicable in case of breach (GIE “Les Indépendants”)

226

The decision-making practice of the French Competition Authority with respect to breaches of the commitments is still not well developed (Aut. conc., dec. no. 11-D-10 of July 6, 2011 relating to compliance by the city of Marseille with the commitments made in Competition Council Decision no. (...)

Christophe Lemaire, Sarah Chikh Removal of business secrets: The French Supreme Court confirms the limited rights of the plaintiff concerning the access to documents covered by business secrets and the appeals against the decisions on the protection of business secrets (Orange)

243

While the law of 18 November 2016 has just introduced an autonomous action before the Paris Court of Appeal for the protection of business secrecy (see this column above), this judgment illustrates the nature of the litigation that may arise, in matters of business secrecy, in connection with (...)

Christophe Lemaire Investigation powers: The French Constitutional Court considers that requests for information based on Article L. 450-3(4) of the French Commercial Code does not represent grounds for a complaint and declares the disposition conform to the Constitution (Brenntag)

186

On 8 July 2016, the Cour de cassation (Court of Cassation) referred a priority constitutionality question to the Constitutional Council, which on 4 May 2016 handed down its decision on the constitutionality of the fourth paragraph of Article L. 450-3 of the Commercial Code, which governs (...)

Christophe Lemaire Commitments: The European Commission accepts commitments offered by 14 container shipping companies to remedy competition concerns regarding alleged concerted practices (Container Shipping)

134

Following the market test launched in February 2016, the Commission has made legally binding commitments offered by fourteen shipping companies. The commitments were designed to remedy competition concerns identified by the Commission relating to the publication by shipping lines of their (...)

Christophe Lemaire, Simon Naudin Equality of arms: The French Competition Authority issues - seven months after they were adopted - the first two decisions which formally applied the Macron settlement (Eurochef, GAFIC, GIF)

187

The publication by the Competition Authority of three decisions relating to practices in the professional kitchen equipment sector highlights two "firsts" which are quite contrasting in procedural terms. On the one hand, it can be seen that two of the three decisions concerned - published more (...)

Christophe Lemaire Action against a decision of the French Competition Authority: The Paris Court of Appeals specifies terms in which an action may be brought against a decision of the French Competition Authority and holds that it cannot be brought through the lawyers’ private network (RPVA) (Nautech / Établissement Public Grand Port Maritime de Marseille)

141

When Nautech lodged a complaint with the Competition Authority concerning alleged practices in the Mediterranean yacht repair sector, the Authority declared itself incompetent to assess some of these practices and rejected the complaint concerning the other practices in the case because of the (...)

Christophe Lemaire, Sarah Chikh Concerted practices: The European Commission seeks observations from interested third parties on commitments offered by fifteen container liner shipping companies to address competition concerns as regard to likely concerted practices (Container Shipping)

136

In proceedings initiated on 21 November 2013 and 13 November 2015, the Commission found that the practice of shipping lines of publishing their intentions regarding future price increases was likely to give rise to competition concerns. Indeed, the fifteen companies concerned regularly (...)

Christophe Lemaire, Sarah Chikh Local anticompetitive practices: The French Competition Authority sets for the first time a fine to undertakings that refused a settlement with the Minister of Economy regarding small anticompetitive practices

149

Mention should also be made of the decision of 27 January 2015 by which the Authority penalised four companies for concerted action for the award of contracts for the provision of school transport in the Lower Rhine. A practice of understanding on a local scale The substance of this case is (...)

Christophe Lemaire, Sarah Chikh Preliminary ruling on constitutionality: The French Constitutional Council declares consistent with the Constitution the difference of maximum legal fine depending on whether the offenders is or not an undertaking (Association Expert-comptable média association)

180

This issue of the Chronicle will once again mention a decision of the Constitutional Council on the compliance with the Constitution of Article L. 464-2 of the Commercial Code relating in particular to sanctions. It will be recalled that in October 2015 the Constitutional Council had ruled on (...)

Christophe Lemaire Commitments: The European Commission accepts and makes binding commitments by Bulgarian Energy Holding to open up Bulgarian wholesale electricity market (Bulgarian Energy Holding)

112

On 10 December 2015, the European Commission adopted a decision making binding the commitments proposed by BEH to end restrictions of competition on the wholesale electricity market in Bulgaria. The competition concerns identified by the Commission concerned territorial restrictions in the (...)

Christophe Lemaire Commitments: The French Competition Authority holds voided previous commitments accepted and made binding in 2012 in the insurance products distribution sector for golf players (Fédération française de Golf)

173

The period under review saw an unprecedented decision, to our knowledge, at the end of which the French Competition Authority declared that commitments entered into in 2012 by the French Golf Federation are no longer binding or have become irrelevant. It will be recalled that some three years (...)

Christophe Lemaire Online sale: The French Competition Authority closes the investigation against a sport company, because the company deleted from its distribution contracts the challenged provision during the investigation, and prohibits the use of market places (Online sale)

216

The investigation services of the Competition Authority had opened an investigation into Adidas’ commercial practices restricting the online sale of its distributions. On 18 November 2015, the Authority decided to close this investigation following a commitment by Adidas to remove from its (...)

Christophe Lemaire, Sarah Chikh Competence of the administrative branch: The French Tribunal of Conflicts establishes the competence of the administrative court to rule on follow on actions brought by a public person against companies that participated to anticompetitive practices and that distorted bid rigging of public works contracts (Île-de-France)

157

By a decision dated 16 November 2015, the Tribunal des conflits had to rule on the jurisdictional order competent to hear actions for damages brought by a public person against the authors of a public works contract-sharing agreement. History of the case In this case, the facts of which date (...)

Christophe Lemaire, Simon Naudin Priority ruling on Constitution: The French Constitutional Council declares consistent with the Constitution both self-referral power of the French Competition Council before the Order of 13th of November 2008 came into force and the fine cap set up by the NRE Act on 15th of May 2001 (Grands Moulins de Strasbourg)

183

In a decision of 14 October 2015, the Constitutional Council, ruling on a priority question of proportionality ("QPC") raised by the Court of Cassation in the so-called flour case (Aut. conc., dec. no. 12-D-09 of 13 March 2012 reformed by CA Paris, November 20, 2014, Sté Grands Moulins de Paris) (...)

Christophe Lemaire Commitments: The French Competition Authority accepts and makes binding commitments in consumer goods distribution in French overseas territories (Bolton Solitaire, Danone, Johnson & Johnson Santé et Beauté France SES et Pernod-Ricard)

151

On 10 September 2015, the Competition Authority accepted and made binding the revised commitments proposed by four manufacturers (Bolton Solitaire, Danone, Johnson & Johnson and Pernod-Ricard) in the overseas consumer goods distribution sector. The investigation carried out by the (...)

Christophe Lemaire, Simon Naudin Interim measures : The French Competition Authority finds that an application for interim measures lodged pursuant to the dismissal of a first application but supported by new elements is admissible (although unfounded in this case) (Secteur de distribution de produits bruns)

158

Does the rejection of a first request for provisional measures which is the subject of an appeal preclude the filing by the applicant of a second request for provisional measures based on additional elements? It is this original situation that the Competition Authority was confronted with in (...)

Christophe Lemaire, Simon Naudin Jurisdiction : The Paris Court of Appeals upholds the jurisdiction of the judges of the civil branch to rule on a private action against companies guilty of bid rigging in relation to public works contracts (Région Île-de-France)

170

In a ruling handed down on 24 June 2015 in the Île-de-France high school markets case, the Paris Court of Appeal had the opportunity to reiterate the primacy of the judicial judge in private enforcement matters, by affirming its full jurisdiction for actions for damages brought against the (...)

Christophe Lemaire, Simon Naudin Actions for nullity : The Paris Court of Appeals rules that the actions for nullity of contracts concluded after a bid-rigging cartel sanctioned by the Competition Authority are not time-barred as the limitation period started as of the date of the Authority’s decision and not of the plaintiff’s application, but rejects the claim for damages (EDF, ERDF)

335

The period under review is relatively rich in terms of private enforcement, since after the affair of the Île-de-France high school markets (see above), it is now the turn of the private enforcement agencies to take action.), it is an action for compensation in the so-called high-voltage cable (...)

Christophe Lemaire Calculation of the fine : The Paris Court of Appeals confirms the circumstances under which belonging to a large group can be taken into account when calculatig the fine (Degaine, Pradeau & Morin)

290

The ruling handed down by the Paris Court of Appeal on 28 May 2015 in the Historic Monuments case further clarifies the way in which a company’s membership of a large group must be taken into account, in France, when calculating the financial penalty. The High Court ruling of 18 February 2014: (...)

Christophe Lemaire Market test : The French Competition Authority issues a market test related to commitments proposed for the booking of the mountain refuge located on the access path to Mont Blanc (Lodge du Goûter)

203

On May 7, 2015, the Competition Authority launched a market test of the booking modalities for the Goûter refuge, a compulsory passage on the royal road to the summit of Mont Blanc. Competition concerns relate firstly to the quota of 24 places reserved for only two guide companies, those of (...)

Christophe Lemaire Commitments : The French Competition Authority, in coordination with the European Commission and the Italian and the Swedish Competition Authorities, adopts commitments in order to limit the parity obligations imposed on hoteliers towards other online travel agencies

270

Following the referral to the French Competition Authority by the main French hotel syndicates and the Accor group, competition concerns were raised regarding the implementation of the parity obligations contained in the contracts between the hotel owners and the leader in booking sites, (...)

Christophe Lemaire Commitments : The French Competition Authority obtains commitments aiming to end an eventual confusion between the technical assistance, market open to competition, and the railway transport

217

On 15 April 2015, the Competition Authority made binding commitments proposed by SNCF, SNCF Mobilités and their subsidiaries Keolis and SNCF Partenariat on the technical assistance market. These commitments are intended to remedy competition concerns relating to the tangible or intangible (...)

Christophe Lemaire, Simon Naudin Voluntary interventions : The French Judiciary Supreme Court annuls the Paris Court of Appeals’ judgment for having stated that voluntary interventions were of no relevance due to the reformation of the conviction they were in support of (Le Crédit lyonnais)

212

Brief mention should be made of the ruling handed down by the Court of Cassation on 24 April 2015 in the case of image-cheque exchange commissions. It is known that the interbank commissions in question gave rise to a sanction decision by the Authority (Aut. conc., dec. no. 10-D-28, dec. no. (...)

Christophe Lemaire Damages : The Paris Commercial Court orders companies to pay damages for practices which gave rise to commitments (DKT International/Eco-Emballages, Valorplast)

930

Following the Google v. NavX case (TC Paris, 27 December 2012, RG 2010070465), the 15th Chamber of the Paris Commercial Court, in its judgment of 30 March 2015, once again ruled on the compensation consequences of a commitment procedure before the French Competition Authority (hereinafter ’the (...)

Christophe Lemaire, Simon Naudin Time-limit for action : The Paris Court of Appeals considers that acts interrupting the legal time-limit for the action against an abusive practice also interrupt the action against a related anticompetitive agreement (Reckitt Bensicker)

255

Also noteworthy is a judgment handed down by the Paris Court of Appeal on March 26, 2015, on an appeal against the decision of the French Competition Authority sanctioning a practice of ousting the generic of the drug princeps Subutex®, in which two procedural questions were debated: the first (...)

Christophe Lemaire, Simon Naudin Priority ruling on constitutionality : The French Supreme Court dismisses a request for preliminary ruling on constitutionality regarding the provisions of article L. 464-2 of the French commercial code on the leniency (Brenntag)

333

Cass. com, 4 March 2015, Brenntag, No. Z 14-40052 In a judgment dated 4 March 2015, the Commercial Chamber of the French Supreme Court of Appeal dismissed a priority constitutionality question ("QPC") brought by Brenntag in the appeal pending against Decision No. 13-D-12 of 28 May 2013 of the (...)

Christophe Lemaire, Simon Naudin Breach of commitments : The French Competition Authority imposes a fine and a periodic penalty payments to an economic interest group for failure to comply with commitments undertaken under Article L.464-2 I of the French commercial code (Les Indépendants)

302

Aut. conc., Dec. no. 15-D-02 of 26 Feb. 2015 relating to compliance by the EIG "Les Indépendants" with the commitments made in Competition Council Decision no. 06-D-29 of 6 Oct. 2006. The decision handed down by the Competition Authority on 26 February 2015 against the EIG "Les Indépendants" is (...)

Christophe Lemaire, Simon Naudin Reasonable period : The French Supreme Court rules that an appeal lodged against inspection authorisations more than 10 to 20 years afterwards does not breach the right to a fair trial nor the reasonable period principle (Colas rail)

255

Cass. crim. 25 Feb. 2015, Colas rail, No. 13-87794 Unibéton, Cemex France gestion and Cemex béton Sud-est, n° 13-87795 Colas midi méditerranée, n° 13-87796 The Criminal Division of the Court of Cassation handed down three judgments dated 25 February 2015 which ruled, apparently definitively, in (...)

Christophe Lemaire, Simon Naudin Leniency : The French Competition Authority provides clarification on the application of the leniency at a national level (Home and personal care products)

296

Aut. conc., Dec. no. 14-D-19 of 18 Dec. 2014 on practices in the cleaning products and insecticides sector and in the hygiene and personal care products sector. The Household and Personal Care and Hygiene Products case is not only attracting attention because of the record level of fines (...)

Christophe Lemaire ECN : The French Competition Authority together with two other national authorities in cooperation with the European Commission launch market tests in investigations in the online hotel booking sector

201

Aut. conc., December 15, 2014, Market Test of Hotel Reservation Platforms ; Eur. comm., 15 December 2014, Press release IP/14/2661: "Commission announces launch of market consultations by French, Swedish and Italian competition authorities in the context of investigations in the online hotel (...)

Christophe Lemaire Market test : The French Competition Authority launches a market test in the sector of urban transport and the connected markets of counsel and technical assistance to transport operators

176

On 18 November 2014, the French Competition Authority launched a market test of the commitments proposed by SNCF and its subsidiary Keolis to remedy the competition concerns identified in the urban transport market and the ancillary markets for advice and technical assistance to transport (...)

Christophe Lemaire Non-contest procedure : The French Competition Authority accepts a differentiated application of the non-contest procedure between a parent company and its subsidiary (Sector of moving soldiers serving in Martinique)

230

In a case condemning a new cartel practice in the military removals sector, the Competition Authority had the opportunity to clarify - if not to go back on - the meaning of the procedural notice of 10 February 2012 concerning the failure to contest the objections. The investigation services (...)

Christophe Lemaire Belonging to a group : The French Supreme Court quashes a judgment of the Paris Court of Appeals considering that the fact that a company belongs to a large group justifies an aggravation of its fine (Spie, Inéo, Allez)

332

Following the historic monuments case at the beginning of 2014, the Court of Cassation once again calls the Paris Court of Appeal and the Competition Authority to order regarding the conditions under which membership of a group may be taken into consideration in the calculation of a financial (...)

Christophe Lemaire Business secrets : The French Supreme Administrative Court rules that provisions in relation with business confidentiality are partially incompatible with the right to effective judicial remedy (Syndicat national des fabricants d’isolants en laines minérales manufacturées)

345

This column, like the previous ones in recent years, illustrates once again the development of litigation and the new problems - under various aspects - related to access to the authorities’ files. In the case in point, it is a question of protecting business secrecy. While judgments on this (...)

Christophe Lemaire, Simon Naudin Interim measures : The Paris Court of Appeals rules that interim measures which have a definitive or irremediable character are compliant with Article L. 464-1 of the French Commercial Code as long as they are necessary to address the urgency of the situation and proportionate to the disturbance suffered (Canal Plus, GDF Suez)

308

CA Paris, October 9, 2014, Canal Plus, RG 2014/16759 ;Paris Board of Directors, October 31, 2014, GDF Suez, RG 2014/19335 The period under review was marked by two much-awaited rulings by the Paris Court of Appeal concerning the nature and scope of the measures that may be ordered as (...)

Christophe Lemaire, Simon Naudin Submission of evidence : The Paris Court of Appeals quashes another ordinance of the Paris Commercial Court which had required the Competition Authority to provide documents from its case file at the request of a party which already possessed them (Eco-Emballages)

321

With this ruling by the Paris Court of Appeal of 24 September 2014, Eco-Emballages, the case law debate on the procedures for the production of documents covered by the secrecy of the investigation before the Competition Authority (Article L. 463-6 C. com.) in the context of a compensation (...)

Christophe Lemaire, Simon Naudin Interim measures : The French Competition Authority issues an interim order requiring an incumbent operator to grant its competitors access to information from its client database (Direct Energie)

206

The decision handed down by the French Competition Authority on 9 September 2014 against GDF Suez provides a new illustration of the sometimes very significant scope of the measures that it is likely to pronounce as a precautionary measure. Ruling on a complaint accompanied by a request for (...)

Christophe Lemaire, Simon Naudin Interim measures : The French Competition Authority suspends the agreement granting the exclusive broadcasting rights of the French rugby league (beIN Sports)

169

The period under review saw the Authority issue two important decisions on provisional measures, one in the sports rights sector and the other in the energy sector. The first of these (the second being commented on later in these columns) concerned the granting of exclusive rights to the (...)

Christophe Lemaire ECN - 10 years: The European Commission celebrates 10 years of antitrust enforcement under Regulation 1/2003 by assessing its implementation and providing improvement and deepening measures for the future

237

Eur. Comm, 7 July 2014, Communication to the European Parliament and the Council, Ten years of Antitrust Enforcement under Regulation 1/2003: Achievements and Future Perspectives (COM(2014) 453 9 July 2014, Staff Working Document: Ten Years of Antitrust Enforcement under Regulation 1/2003 (...)

Christophe Lemaire, Simon Naudin Search and seizure : The French Supreme Court quashes a judgment of the first president of the Paris Court of Appeals who denied the right of companies to be assisted by an attorney during antitrust inspections prior to the entry into force of the ordinance of 13 November 2008 and annuls the inspections carried out after the lawyers were expelled (Caisse régionale du crédit agricole du Finistère)

257

One might have thought that the order of 13 November 2008 had definitively closed the debate on the right of companies to benefit from the assistance of a lawyer during competition inspections, by expressly enshrining this right in Article L. 450-4 of the Commercial Code. Recent jurisprudence (...)

Christophe Lemaire ECN - Cooperation : The Paris Court of Appeals requests for the first time an opinion of the European Commission pursuant to article 15 § 1 of Regulation 1/2003 (France Télécom)

186

On 19 June 2014, the Paris Court of Appeal handed down its first ruling in the case of the so-called on net and off net tariff differentiations implemented in the mobile telephony market. It will be recalled that, in a decision dated December 13, 2012, the French Competition Authority (...)

Christophe Lemaire, Simon Naudin Market tests : The French Competition Authority publishes two market tests and the European Commission adopts legally binding commitments (Nespresso, SNCF, Samsung)

179

Aut. conc. market test of 17 April 2014 concerning the commitments proposed by Nespresso Aut. conc. market test of 28 April 2014 concerning the commitments proposed by the SNCF Eur. comm., April 29, 2014, Dec. 9 R. 1/2003 Samsung, Case COMP/39.939 The period under review is marked by a new (...)

Christophe Lemaire, Simon Naudin Sanctions: The French Supreme Court quashes a judgment of the Paris Court of Appeals that considered that the fact that a company belongs to a large group justifies an aggravation of its fine and the refusal to take any account of the financial difficulties specifically faced by this company (Pradeau et Morin)

374

While the entry into force of Regulation 1/2003 almost 10 years ago (on 1 May 2004) obliged Member States to align their national antitrust rules with EU law, its effects went far beyond the substantive rules alone. This logic of convergence has rapidly extended to the implementing rules (...)

Christophe Lemaire Commitments : The European Commission declares legally binding the commitments offered by the German incumbent railway operator regarding its pricing system for traction energy (Deutsche Bahn)

140

On 18 December 2013, the Commission made legally binding the final commitments offered by Deutsche Bahn with regard to its traction current charging system in Germany. After having informed Deutsche Bahn of the competition concerns identified on a preliminary basis in June 2013, the Commission (...)

Christophe Lemaire Commitments : The Paris Court of Appeal withdraws a judgment of the Paris Commercial Court ordering the Competition Authority to disclose documents from a settlement procedure in the context of a damage action (Ma liste de courses c/ High Co 3.0)

235

After some hesitation, is the case law on the link between the secrecy of the investigation before the Authority guaranteed by Article L. 463-6 of the Commercial Code and the production of documents resulting from it in a compensation dispute (finally) finding its way? This is what the (...)

Christophe Lemaire Appeal : The Paris Court of Appeal rules that a period of more than twenty years between the decision authorizing the inspections and the effective exercise of an appeal in law and fact against the said decision is not unreasonable if it is the consequence of a succession of legal proceedings which allowed the companies to benefit from that appeal (Colas Midi Méditerranée, CEMEX France Gestion, Colas Rail)

213

CA Paris, 30 October 2013, CEMEX France Gestion CA Paris, October 30, 2013, Colas Rail Three rulings and twenty years of proceedings later, the road works case in the Var department continues to feed this chronicle by offering us new rulings from the Paris Court of Appeal of October 30, 2013, (...)

Christophe Lemaire Appeal : The French Supreme Court follows the case-law of the Court of Justice of the European Union and confirms the admissibility of an appeal lodged by the President of the French Competition Authority against court orders suspending the operation of French Competition Authority’s decision (Axiane meunerie c/ Minoteries Cantin)

129

The position taken by the Court of Cassation with regard to the admissibility of the Competition Authority’s appeals is also noteworthy in this case. In the present case, the parties contested the admissibility of the appeal by the President of the Authority on the basis of the provisions of (...)

Christophe Lemaire Fines : The French Supreme Court annuls the Court of appeal’s orders suspending the execution of the French Competition Authority’s decision and specifies its position concerning the criteria of belonging to a group in order to assess economic difficulties of one of its companies fined for anticompetitive practices (Axiane meunerie c/ Minoteries Cantin)

234

With this decision, the Court of Cassation takes a stand in the debate on whether the manifestly excessive consequences of the payment of the fine should be analysed at the level of the sanctioned entity alone or whether, on the contrary, the group to which this entity belongs should be taken (...)

Christophe Lemaire Commitments : The European Commission invites the interested parties to comment on commitments offered by a mobile operator in relation to the enforcement of the standard essential patents in the field of mobile communications (Samsung)

175

On 17 October 2013, the Commission invited interested companies to comment on commitments offered by Samsung Electronics (’Samsung’) regarding the enforcement of essential patents related to a standard held by Samsung in the field of mobile communications. After opening an investigation in (...)

Christophe Lemaire Fines : The Paris Court of Appeal delivers its first decision on the Competition Authority’s notice on the calculation of the fines and approves its application to facts which took place, and to settlement proceedings which were initiated, before its entry into force (Nestlé Purina Petcar France)

273

Judgments of the courts ruling on the Competition Authority’s soft law acts are rare, if not almost non-existent to date. Thus, prior to the judgment under review, the Paris Court of Appeal had only had the opportunity to rule twice on the Authority’s communiqué of 16 May 2011 on the method for (...)

Christophe Lemaire Sanctions : The Paris Court of Appeal reasserts that the limitation period of ten years does not apply to acts regularly adopted before the entry into force of the ordinance of 13 November 2008 (Razel et Sefi-Intrafor)

236

The new decision of the Paris Court of Appeal in the Drapo software case, handed down on referral after cassation, gave it the opportunity to confirm the inapplicability of the ten-year statute of limitations to acts lawfully adopted before its entry into force. In reversing its initial (...)

Christophe Lemaire, Simon Naudin Termination of proceedings: The French Competition Authority ends infringement proceedings on the basis of an agreement under its supervision between the plaintiff and the alleged infringing company (Optical fiber)

114

In a press release dated July 25, 2013, the French Competition Authority announced that it had closed the proceedings between Free and Orange on the basis of an agreement reached between the two parties. In this case, Free had complained to the French Competition Authority about the incumbent (...)

Christophe Lemaire, Simon Naudin Annulment actions: The Council of State reaffirms the inadmissibility (save in exceptional circumstances) of appeals lodged against the opinions of the French Competition Authority in the case of an appeal against an opinion delivered at the French Competition Authority’s initiative (Automobile manufacturer)

166

The period under review gave the Conseil d’État the opportunity to rule for the third time in a few months on the scope of certain soft law acts of the Competition Authority. In this case, it was a new opinion issued on referral of its own motion pursuant to Article L. 462-4 of the Commercial (...)

Christophe Lemaire, Simon Naudin Business secrets: The Paris Court of Appeal approves the non-confidential treatment of documents provided by a third party but elaborated by a party which was not consulted concerning their confidentiality (Digicel Antilles françaises Guyane)

221

The aftermath of the so-called Orange Caraïbes case gave the Paris Court of Appeal the opportunity to rule, in a ruling of July 4, 2013, on the scope of the protection of business confidentiality and the effects attached to its possible disregard. The question put to the Court of Appeal The (...)

Christophe Lemaire Commitments: The French Competition Authority makes a decision and publishes a market test whereas the European Commission takes two decisions and publishes three market tests

245

Conc. aut. conc. market test, May 6, 2013, MasterCard vs. Visa cards Dec. Eur. comm. of 10 April 2013, CEZ, aff. AT/39727 Eur. Comm. 23 May 2013, Dec. C(2013) 2836 final, Continental v. United v. Lufthansa v. Air Canada Comm. eur, art. 27, § 4 R. 1/2003, Google, aff. AT/39740 of April 26, (...)

Christophe Lemaire, Simon Naudin Rights of defense: The Cour de cassation confirms the judgment of the Court of Appeals which rules that the duration of the proceedings in the Perfumes case complies with the right to a trial within reasonable time (Marionnaud)

183

In a ruling dated June 11, 2013, the Court of Cassation definitively ended the debate on the compliance with Article 6 of the ECHR of the time limit for the proceedings leading to the Authority’s decision in the perfumes case. In this case, which gave rise to an initial judgment of censure on (...)

Christophe Lemaire Leniency: The French Competition Authority authorises the settlement concurrently with leniency procedures for the first time and specifies the legal remise of leniency

384

In addition to its contributions on the substantive issues, in particular the concept of complex and continuous infringement (see the Cartel column), the Competition Authority’s decision of 28 May 2013 will also be of interest for its contributions on the procedural level and in particular for (...)

Christophe Lemaire Class actions : The draft legislation on Consumer Affairs propose to introduce class actions into French law and to modify some aspects of competition investigations measures

271

Consumer bill registered at the Presidency of the National Assembly on 2 May 2013 See also Alain Ronzano, Christophe Lemaire, Benoît Hamon: "Benoît Hamon : Un droit de la consommation plus efficace pour une économie plus compétitive", ConcurrencesNo. 2-2013, art. No. 52033, pp. 7-11 This text (...)

Christophe Lemaire Search and seizure: The Cour de cassation validates again the administration practice related to pre-drafted orders authorizing search and seizure (Transports scolaires et routiers de voyageurs dans le département du Loiret...)

193

Cass. com, December 18, 2012, No. 11-28786. Criminal Code, February 27, 2013, No. 11-88470. Criminal Code, February 27, 2013, No. 11-88471. Criminal Code, 27 February 2013, No. 11-82446. Criminal Code, February 27, 2013, No. 11-82447. In five rulings, including one in a tax case (...)

Christophe Lemaire Settlement procedure: The French Competition Authority grants a reduction of the fine related to a settlement procedure comprising commitments including a conformity program (CSOEC - ECMA)

284

Aut. conc. dec. no. 13-D-06 of 28 February 2013 relating to practices implemented in the market for the remote transmission of tax and accounting data in EDI format to the tax authorities In this decision, the Competition Authority sanctions the Conseil supérieur de l’ordre des (...)

Christophe Lemaire, Simon Naudin Application for suspension of operation: The Paris Court of Appeal dismisses an application for the suspension of the payment of the fine in the flour case and reverses its precedent on the assessment of the economic difficulties of the companies concerned (Grands Moulins de Strasbourg)

185

CA Paris, ch. 5-7, 13 November 2012, Grands Moulins de Strasbourg The economic crisis we are going through is leading, both at European and national level, to interesting discussions on how to take these difficulties into account when calculating the fine (the problem of contributory capacity, (...)

Christophe Lemaire Opinion of the NCA: The Council of State rules that the opinions of the NCA may not be appealed since the statement of views and recommendations they contain do not have any adverse effects (Casino)

166

The LME Act supplemented the advisory powers previously held by the Competition Council (see Articles L. 462-1 to L. 462-3 of the Commercial Code) by giving the new Competition Authority a much broader power, that of "taking the initiative to give an opinion on any matter concerning (...)

Christophe Lemaire, Simon Naudin Interruption of the time limit: The Paris Court of Appeal dismisses the immediate application of the ten-year time limit introduce by the LME Act and confirms the substantial latitude of the FCA for access to and use of evidence from the criminal procedure (Chevalier Nord)

242

In addition to the question of reasonable time (see this column, supra), the judgment of 11 October 2012 in the Historic Monuments case gave the Paris Court of Appeal the opportunity to rule on two other procedural points, one relating to the rules of limitation and the other to the (...)

Christophe Lemaire, Simon Naudin Priority preliminary ruling on the issue of constitutionality: The French Constitutional Council rules that the enforcement powers of the FCA in the field of merger control do not breach the right to a fair trial and therefore comply with the Constitution (Groupe Canal Plus)

187

On October 12, 2012, the French Constitutional Court rendered a long-awaited decision on the priority constitutionality issue raised by Canal Plus and Vivendi following the withdrawal by the French Competition Authority of the decision authorizing the acquisition of TPS by Canal Plus in 2006 (...)

Christophe Lemaire, Simon Naudin Article 6 echr : The Paris Court of Appeal rules that the “reasonable time” principle was not breached in the historical monuments case and specifies the companies’ obligation concerning the preservation of evidence (Chevalier Nord)

203

By judgment of 11 October 2012 in the Historic Monuments Case (see Dec. No. 11-D-02 of 26 January 2011 on practices implemented in the restoration of historical monuments), the Paris Court of Appeal upheld the high standard of proof required to establish a violation of the principle of (...)

Christophe Lemaire Proof - Loyalty: The Court of cassation rules that evidence collected during a private litigation on the basis of a judicial authorisation which was withdrawn is disloyal and may not be provided to or requested by a case handler of the NCA (Europ Power Technology)

147

Cass. com, 09.10.12, Appeal No. 10-28718. This decision of the Court of Cassation provides an interesting clarification regarding the investigative powers of rapporteurs and the principle of fair evidence. The procedural context ---- In this case, Europ Power Technology, a company active in (...)

Christophe Lemaire Search and seizure operations - Legality of the authorisation: The First president of the Paris Court of Appeal approves the authorisations and the conduct of the inspections carried out in the sports press sector (Aujourd’hui Sport; l’Equipe)

249

By two orders dated August 31, 2012, the First President of the Paris Court of Appeal validated respectively the legality of the order authorizing the inspections carried out on the premises of the various entities of the Amaury group, and the conduct of these inspections, in the context of the (...)

Christophe Lemaire Withdrawal of a merger’s authorisation: The Council of State dismisses a request for the suspension of a decision withdrawing a merger authorisation (Groupe Canal Plus et Vivendi Universal)

167

CE, Order of September 17, 2012, No. 362330, Canal Plus Group and Vivendi Universal In an order dated September 17, 2012, the Conseil d’État ruled on an application for interim injunction filed by Canal Plus and Vivendi Universal against the decision issued by the French Competition Authority on (...)

Christophe Lemaire Financial sanctions – Companies in difficulty: The Paris Court of Appeal orders the suspension of the payment of the fine in the flour case in light of the economic difficulties of the companies concerned (Axiane Meunerie ; Minoteries Cantin)

263

Should we see in the recent jurisprudence of the Paris Court of Appeal a (distant) echo of Sully’s famous words that "Ploughing and grazing are the two teats of France"? After the endives producers last June, this time it is the millers who have been granted, by two orders of the First President (...)

Christophe Lemaire Party to the proceedings – Vebic judgement: The French Competition Authority obtains the status of party to the proceedings before the Paris Court of Appeals concerning the decisions rendered by the FCA

383

After the Court of Cassation in its rulings of 17 January and 20 March 2012 (see our comments Concurrences No. 2-2012, pp. 137-39), it is the regulatory power that has drawn all the consequences of the Vebic judgment of the Court of Justice (CJEU, 7 December 2010, Vebic, C-493/08, Concurrences (...)

Christophe Lemaire Settlement: The European Commission applies the settlement procedure for the sixth time concerning a cartel in the sector of water management products (Producers of water management products)

178

On 27 June 2012, the Commission issued a press release announcing the adoption of a decision imposing a total fine of €13 million on manufacturers of water management products for violation of the competition rules. In this case, three companies, Flamco, Reflex and Pneumatex have for almost two (...)

Christophe Lemaire, Simon Naudin Fines: The Paris Court of Appeal orders the suspension of the payment of the fine in the chicory case in light of the economic difficulties of the producers concerned (Fraileg, France endives)

216

By three orders dated 26 June 2012, the First President of the Paris Court of Appeal suspended the sanctions imposed by the Competition Authority in the case relating to practices implemented in the endives sector, in view of the delicate economic situation of the companies concerned. The First (...)

Christophe Lemaire, Pascal Cardonnel Leniency – Private action: The European Competition Network adopts a “resolution” aiming to protect leniency materials in the context of damages actions “Protection of leniency material in the context of civil damages actions”

370

ECN, Resolution of the Meeting of Heads of the European Competition Authorities, "Protection of leniency material in the context of civil damages actions", 23 May 2012 As the debate on access to documents of competition authorities, in particular in the context of cartels detected through (...)

Christophe Lemaire, Simon Naudin Limitation period of ten years: The Court of Cassation quashes the judgement of the Paris Court of Appeal and rejects the retroactive application of the ten year limitation period introduced by the ordinance of 13 November 2008 to invalidate decisions regularly adopted before its entry into force

193

Cass. com, 15 May 2012, Minister of the Economy, Finance and Industry, No. 11-18507 As could have been anticipated, the Court of Cassation, in a decision of 15 May 2012, censured the decision handed down by the Paris Court of Appeal on 5 May 2011 in the Drapo software case (on this decision (...)

Christophe Lemaire Search and seizure operations: The First president of the Court of Appeal of Paris declares inadmissible an appeal against search and seizure operations sent by registered letter but not lodged at the Registry (France Télécom)

241

In an order issued on May 15, 2012, the delegate of the First President of the Paris Court of Appeal declared inadmissible the appeals filed by France Telecom against the inspection and seizure operations carried out at its various premises on December 9, 2010. Following a complaint by (...)

Andreas Mundt, Christophe Lemaire, Nicholas Forwood, Richard Whish TR IV - Objet anticoncurrentiel / effet anticoncurrentiel: La distinction a-t-elle encore un avenir ? (New Frontiers of Antitrust Conference - Paris, 10 février 2012)

1723

La quatrième table-ronde de la conférence New Frontiers of Antitrust du 10 février 2012 à Paris était dédiée à la distinction entre objet et effet anticoncurrentiel. Richard Whish, Professeur au King’s College de Londres, introduit le sujet par quelques observations liminaires. Nicolas Forwood, juge au (...)

Christophe Lemaire, Simon Naudin Access to file: The Paris Commercial Court authorises in a summary judgement the use of documents from the case file of the NCA in the context of a damage action by derogation from Art. L. 463-6 (Primagaz)

362

On 11 April 2012, the First Chamber of the Commercial Court of Paris issued a new decision on the sensitive issue and discussed the production of documents from the Authority’s file before the commercial courts. An original action for damages ---- A relatively original civil action was before (...)

Christophe Lemaire Search and seizure operations: The Court of Cassation confirms the discretion of lower courts to assess the existence of presumptions of anticompetitive practices (Grands Moulins de Paris - France Farine)

234

Criminal Case, 4 April 2012, Grands Moulins de Paris, No. 10-85282. Criminal Records, 4 April 2012, France Farine, No. 10-85283. On April 4, 2012, the Criminal Division of the Court of Cassation rejected two appeals filed against orders of the First President of the Paris Court of Appeal, (...)

Christophe Lemaire, Simon Naudin Search and seizure operations: The Court of Cassation quashes an ordinance of the first president of the Paris Court of Appeal and adopts an extensive interpretation of the NCA’s powers (Société urbaine de travaux)

201

Cass. crim. 4 April 2012, Autorité de la concurrence and Société Urbaine de travaux, No. 10-88192. This case concerned the legality of a visit and seizure order which had been partially annulled by an order of 2 November 2010 of the First President of the Paris Court of Appeal. The Court of (...)

Christophe Lemaire, Simon Naudin Access to file: The Paris Commercial Court dismisses the objections of the French Competition Authority and maintains its order to disclose documents collected in the context of commitments proceedings in order to rule on a damage action (Ma Liste de Courses/Highco, DKT International/Eco-emballages and Valorplast)

662

The issue of the use (or communication) before the civil court of documents from the Competition Authority’s file is undoubtedly growing in importance, as the recent judgments of the 15th Chamber of the Paris Commercial Court dated March 16, 2012, further demonstrate. The first concerns the (...)

Christophe Lemaire, Simon Naudin European competition network: The French Competition Authority and the Bundeskartellamt exchange information in the course of the investigation of a cartel in the in the packaged flour sector (Packaged flour marketed in the food retailing sector)

348

Concordant Aut. dec. no. 12-D-09 of 13 March 2012 on practices implemented in the food flour sector Decision No 12-D-09 of 13 March 2012 by which the Competition Authority sanctioned 17 producers of bagged flour to the tune of EUR 242.4 million provides a good illustration of the cooperation (...)

Christophe Lemaire Search and seizure operations: The Court of Cassation rejects the appeal lodged by a company to annul search and seizure operations on the grounds of their irregularity (Société urbaine de travaux)

165

Cass. crim. 7 March 2012, Société urbaine de travaux, n°10-88196 On March 7, 2012, the Criminal Division of the Cour de Cassation rejected the appeal brought by Urbaine de Travaux seeking the annulment of the order of the First President of the Paris Court of Appeal ruling on the regularity of (...)

Christophe Lemaire, Simon Naudin Appeal against search and seizure operations: The Court of Cassation confirms that the transitory regime providing for an appeal on law and fact against the decisions authorising search and seizure operations before the chamber of the Court of Appeal of Paris which also rules on the decision on the merits of the case breaches the right to a fair trial (Veolia Transport, Keolis, Transdev, Colas rail)

308

Cass. com, November 15, 2011, Veolia Transport, Keolis, Transdev, n° 10-20527, 10-20851 and 10-20881 Cass. com, November 2, 2011, Colas rail, n° 10-21103 In two judgments dated 2 November and 15 November 2011, the Court of Cassation had the opportunity to confirm the incompatibility with the (...)

Christophe Lemaire, Simon Naudin Appeal - Indivisibility: The Court of Cassation refuses to extend the effects of an appeal lodged by only one cartel member on the merits of the case to the benefit of the other cartel members on the grounds that there is no legal indivisibility between them within the meaning of article 615 of the code of civil procedure (Veolia Transport, Keolis, Transdev)

354

Cass. com, November 15, 2011, Veolia Transport, Keolis, Transdev, n° 10-20527, 10-20851 and 10-20881 The period under review gave the Commercial Chamber of the Court of Cassation the opportunity to rule, in its judgment of 15 November 2011 in the Urban Public Passenger Transport case, on a (...)

Christophe Lemaire, Simon Naudin Search and seizure operations: The Court of Cassation confirms its case law on the use of anonymous statements as presumptions justifying search and seizure operations and reaffirms lower judges’ discretion when assessing these presumptions (Banking sector)

379

Criminal Case, 16 November 2011, Banques populaires participations, No. 10-85270 Criminal case, 16 November 2011, BPCE, No. 10-85273 Criminal records, 19 October 2011, Crédit Mutuel de Guilers and others, No. 10-85269. Criminal Code, November 3, 2011, Banque populaire de l’Ouest, No. 10-85276. (...)

Christophe Lemaire, Simon Naudin Seizure of electronic files: The Paris Court of Appeal delivers three new decisions confirming the inseparability of electronic mailboxes (Geodis, TLF, TNT Express National)

415

CA Paris, ch. 5-7, 4 October 2011, TNT Express National and SNC TNT Express France, RG 10/23198 CA Paris, ch. 5-7, 4 October 2011, Geodis Division Messagerie Services GMDS, RG 10/23202 The year 2010 had ended on a hopeful note with the decision of the delegate of the First President of the (...)

Christophe Lemaire, Simon Naudin Disclosure of the case file: The Paris Commercial Court considers that the disclosure of documents from the case file before the commercial judge is not in breach of article L. 463-6 if these documents were already known to the other parties (Outremer Telecom and Orange Caraïbes)

536

While case law relating to Article L. 463-6 of the French Commercial Code has so far been extremely rare, the years 2010/2011 undeniably mark a turning point in this area. Indeed, after the Court of Cassation in 2010 (Cass. com., 19 January 2010, Semavem v. JVC, Concurrences No. 2-2010, obs. (...)

Christophe Lemaire, Simon Naudin Commitments: The French Competition Authority adopts three decisions while the Commission adopts one decision and issues one market test (Pompes funèbres dans le département de la Manche, centre hospitalier d’Arcachon, Carrefour, IBM, Thomson Reuters)

273

(On the decisions of the Competition Authority, see also above, column "Unilateral practices"). Aut. conc. dec. no. 11-D-14 of 20 October 2011 relating to practices implemented in the funeral sector in the Manche department Council Decision No. 11-D-18 of 15 December 2011 on practices (...)

Christophe Lemaire, Simon Naudin Loyalty of proof: The Paris Court of Appeal considers phone recordings to be illegal evidence in the TVHA case and refers the case back to the French NCA for further investigations after ruling that the time limit of ten years is not applicable (Philips France)

374

on second reference after cassation, against Cons. conc., dec. no.05-D-66 of 5 December 2005, "consumer electronics products". In a ruling of 16 February 2012, the Paris Court of Appeal, ruling on a referral after cassation in the TVHA case, took note of the High Court’s censorship ruling, (...)

Christophe Lemaire, Simon Naudin Search and seizure operations: The Court of Cassation annuls the judgement of the Paris Court of Appeals which found a gap of 15 years between the inspections and the exercise of the appeal to be compatible with the ECHR (Cemex bétons Sud-Est)

256

Cass. com, February 14, 2012, Cemex bétons Sud-Est e.a., n° 11-11750 and 11-13130, "ready-mixed concrete sector in the Provence-Alpes-Côte-d’Azur region". Decidedly the old case of Ready-mixed Concrete never ends! Once again the Court of Cassation censors a judgment of the Court of Appeal in this (...)

Christophe Lemaire, Simon Naudin Effect on trade between Member States: The European Commission acts as amicus curiae before the Supreme Court on the definition of effect on trade between Member States (France Telecom, Orange Caraïbe)

730

Although this judgment does not concern procedural issues, it should be noted (given the rarity of the event) that the Commission intervened before the Court of Cassation as amicus curiae on the issue of the definition of the concept of effect on trade between Member States. Such intervention (...)

Christophe Lemaire, Simon Naudin Reasonable time: The Paris Court of Appeal reviews its analysis after being annulled by the Cour de Cassation in the Perfumes case and finds the duration of proceedings in this case to be reasonable within the meaning of the ECHR (Beauté Prestige International)

268

(see also, supra, "Agreements" column, obs. M. Debroux). CA Paris, ch. 5-7, January 26, 2012, Beauté Prestige International and others; on second reference after cassation, against Cons. conc. dec. no. 06-D-04 of March 13, 2006, luxury perfumery sector The Paris Court of Appeal has ruled once (...)

Christophe Lemaire, Simon Naudin Search and seizure operations: The Court of Cassation quashes an ordinance of the First President of the Paris Court of appeal for having set stricter conditions concerning inspections in press companies (10 Médias)

251

Criminal Case, 11 January 2012, General Rapporteur of the Competition Authority and Society 10 Media, No. 10-85446 In a ruling on 11 January 2012, the court of cassation affirmed the full applicability of ordinary law on inspections and seizures to news media companies, censuring an order by (...)

Christophe Lemaire, Simon Naudin Seizure of electronic documents: The Court of Cassation annuls a request of expert report from the Paris Court of Appeals to assess the method of undifferentiated seizure of electronic documents

252

Criminal Code, 11 January 2012, General Rapporteur of the Competition Authority, No. 10-88193. Criminal Code, 11 January 2012, General Rapporteur of the Competition Authority, No. 10-88194. Criminal Code, 11 January 2012, General Rapporteur of the Competition Authority, No. 10-88197. As in (...)

Christophe Lemaire, Simon Naudin Protection and information of consumers: The French Parliament adopts in first reading on 11 October 2011 the bill on the reinforcement of the rights, the protection and the information of consumers

345

Bill to strengthen the rights, protection and information of consumers, No. 3508, tabled on 1 June 2011 and adopted at first reading by the National Assembly on 11 October 2011 The period under review is marked by the adoption at first reading by the National Assembly of the bill strengthening (...)

Christophe Lemaire, Simon Naudin Access to file: The Paris Commercial Court orders the French NCA to disclose documents collected in the context of commitments proceedings in order to rule on a damage action (Ma Liste de Courses/Highco and Sogec)

706

While the year 2011 was marked by a new round of consultations by the European Commission on civil actions (first on a coherent European approach to collective actions, then on the quantification of damages) and litigation before the Court of Justice on access to authorities’ documents is (...)

Christophe Lemaire, Simon Naudin Request for opinion: The French Competition Authority rejects a request for opinion from the Ministry of Economy amounting to a request for an individual exemption of an agreement between undertakings and compels the Ministry to reformulate a general competition question

462

Aut. conc. opinion No. 11-A-11 of July 12, 2011 on contract negotiation methods in the livestock sector in a context of volatile agricultural commodity prices. (See also, supra, "Agreements" column, obs. Mr. Debroux) It is known that the Minister has the power to request the Authority "on any (...)

Christophe Lemaire, Simon Naudin Commitments: The French Competition Authority delivers a decision and launches three market tests while the Commission launches one market test (Cartes Bancaires ; Centre hospitalier d’Arcachon ; Carrefour ; Météo-France ; IBM)

451

Concordant Aut. conc. dec. no. 11-D-11 of 7 July 2011 relating to practices implemented by the Groupement des Cartes Bancaires Aut. conc. market test of 21 July 2011 concerning the commitments proposed by the Arcachon hospital centre, the Groupement des Praticiens en Imagerie Médicale du Bassin (...)

Christophe Lemaire, Simon Naudin Failure to comply with commitments: The French Competition Authority delivers a first decision for failure to comply with commitments offered under Article L.464-2 I of the French commercial Code (City of Marseille)

425

Aut. conc. dec. no. 11-D-10 of July 6, 2011 relating to compliance by the city of Marseille with the commitments made in Competition Council Decision no. 08-D-34 of December 22, 2008 (See also, supra, "Unilateral Practices" column, obs. F. Marty) The undertakers’ sector, which has already (...)

Christophe Lemaire, Simon Naudin Seizure of electronic files: The Court of Cassation approves once again the global seizure of electronic documents and confirms the principle of inseparability of electronic mailboxes (Schering-Plough)

519

Criminal Code, June 29, 2011, Schering-Plough Corporation, No. 10-85479. One would almost wonder today whether it is necessary to mention the High Court’s judgments confirming the method of global seizure of computer files, and the principle of unbreakability which forms the basis for it, so (...)

Christophe Lemaire, Simon Naudin Search anr seizure – Fair trial: The Court of Cassation condemns the transitory regime applicable to appeals against search and seizure operations which occurred before the entry in force of the ordinance of 13 th November 2008 for breach of the right to a fair trial (Colas Midi-Méditerranée)

539

Cass. com. June 21, 2011, Colas Midi-Méditerranée, No. 09-67793, "public contracts in the Var department". Life is definitely not a long river of peace for the appeal set up on a transitional basis by Order No. 2008 1161 of 13 November 2008 against the orders for authorisation of visits and (...)

Christophe Lemaire, Simon Naudin Seizure of electronic files: The Court of Cassation rejects a request of expert report regarding the seizure of electronic files ordered by the first President of the Court of Appeal of Paris (General Rapporteur of the French NCA/Order of the first President of the Cour of Appeal of Paris)

952

Cass. crim, 16 June 2011, Rapporteur General of the Competition Authority v/ Order of the First President of the Paris Court of Appeal, No. 11-80345 Decidedly, it does not seem obvious in France to make things move in terms of computer seizures if we judge by the ruling handed down by the (...)

Christophe Lemaire, Simon Naudin Fair trial: The French Competition Auhtority approves the first referral of a case by the Minister of Economy without prior report and considers that the presence of the CEO of the plaintiff in the College at the beginning of the investigation is compatible with the right to a fair trial (Kiala)

504

Aut. conc,. dec. no. 11-MC-01 of 12 May 2011 relating to the request for interim measures submitted by Kiala France and Kiala SA in the parcel delivery sector (See also, supra, "Unilateral Practices" column, obs. A.-L. Sibony) There are two procedural issues in this case, which originated in (...)

Christophe Lemaire, Simon Naudin Temporal application of the law: The Paris Court of Appeal rules that the ten years limitation period introduced by the Ordinance of 13th of November 2008 applies immediately to events which occurred before its entry into force (Razel and Sefi-Intrafor ; Drapo software)

640

06-D-07 de la CA Paris, ch. 5-7, of 5 May 2011, Razel and Sefi-Intrafor; on reference after cassation, against Cons. conc. dec. no. 06-D-07 of 21 March 2006, "Logiciel Drapo". On 5 May, the Paris Court of Appeal handed down a ruling in the Île-de-France region public procurement case which, (...)

Christophe Lemaire EC Regulation n° 1/2003 – Article 5: The Court of Justice denies to the NCAs the right to adopt decisions “stating that a practice does not restrict competition” (Tele2 Polska)

974

CJEU, 3 May 2011, Tele2 Polska, Case C-375/09 The Court of Justice of the European Union has so far had very few opportunities to rule on the provisions of Regulation 1/2003 since its entry into force on 1 May 2004. For that reason alone, the judgment of 3 May 2011, delivered in the Grand (...)

Christophe Lemaire, Simon Naudin Seizure of electronic documents – Settlement proceedings: The Court of Cassation approves the partial disclosure of a mailbox which had been initially classified as confidential in its entirety and rules that the settlement proceedings with several companies establishes the existence and nature of the infraction in respect to all the companies concerned (Manpower)

645

Cass. com, March 29, 2011, Manpower France holding e.a., n° 10-12913 and 10-13686, "Temporary employment sector". The ruling handed down on 29 March 2011 in the so-called temporary work case, which has already given rise to several comments in this column (v. ConcurrencesNo. 2 2009, Procedural (...)

Christophe Lemaire, Simon Naudin Search and seizure operations – Challengeable act: The Court of Cassation reminds or specifies the nature of the challengeable acts in case of an appeals against respectively the conduct and the judicial authorisation of search and seizure operations (Owens Illinois Sales and Distribution France, Onyx Languedoc-Roussillon, Saint-Gobain Emballage)

841

Criminal Case, February 23, 2011, DGCCRF, No. 09-87847, "Owens Illinois Sales and Distribution France". Criminal Records, 23 February 2011, Onyx Languedoc-Roussillon, No. 09-87848. Criminal Case, February 23, 2011, DGCCRF, no. 09-87849, "Saint-Gobain Emballage". The Court of Cassation handed (...)

Christophe Lemaire, Simon Naudin Right to an effective remedy/Fair trial – Reasonable time: The Paris Court of Appeal approves the legality of the appeal exercised against a decision authorising search and seizure operations in application of the transitory regime introduced by the ordinance of 13 November 2008, in spite of the recent case law of the ECHR (Cemex Bétons Sud-Est, Ready-mixed concrete in Provence-Alpes-Côte-d’Azur)

740

on remand after cassation, against Cons. conc. 97-D-39 of 17 June 1997 on practices implemented by various undertakings in the ready-mixed concrete sector in the Provence-Alpes-Côte d’Azur region In the most recent part of the Ready-mixed Concrete case in the PACA region, which has already given (...)

Christophe Lemaire, Simon Naudin Right to an effective remedy/Fair trial – Nature of the control exercised by the court of appeals: The Paris Court of Appeal exercises a minimal review of a decision authorising search and seizure operations (Cemex Bétons Sud-Est, Ready-mixed concrete in Provence-Alpes-Côte-d’Azur)

698

on remand after cassation, against Cons. conc., dec. no. 97-D-39 of 17 June 1997 on practices implemented by various firms in the ready-mixed concrete sector in the Provence-Alpes-Côte d’Azur region. The third lesson of the Court of Appeal’s decision in the Ready-mixed Concrete case discussed (...)

Christophe Lemaire, Simon Naudin Seizure of electronic documents: The Court of Cassation confirms in rulings in the field of tax proceedings the practice of the undifferentiated seizure of electronic documents and the limited content of the inventory (M. et Mme X..., M. et Mme Y... et Sodipro, Europroperties investment, M. Y…)

729

Cass. com, 18 January 2011, Mr and Mrs X..., Mr and Mrs Y...and Sodipro, No. 09-70397 Cass. com, January 18, 2011, Europroperties investment, n° 10-11777 Cass. com, January 18, 2011, Mr. Y... , No. 10-11778 The debate on the global seizure of computer files in the context of searches is (...)

Christophe Lemaire Inspections: The Paris Court of Appeal, after the judgements of the ECHR Canal Plus and Primagaz in regard to inspections, decides to reopen the issues in the case regarding ready-mixed concrete (Ready-mixed concrete)

1468

CA Paris, ch. 5-7, 13 January 2011, Cemex Beton Sud-est e.a.; on reference after cassation against Cons. conc., dec. no. 97-D-39 of 17 June 1997, ready-mixed concrete sector in the Provence-Alpes-Côte-d’Azur region The companies implicated in this case had been granted by the Court of Cassation (...)

Christophe Lemaire, Simon Naudin Admissibility of evidence: The Court of Cassation reaffirms the illegality of the evidence obtained through recordings and ends the opposition of the Paris Court of Appeal (Philips France, Sony France)

1185

In this ruling, the plenary session of the Court of Cassation cut short the resistance of the Paris Court of Appeal, which had persisted in admitting the legality of telephone recordings obtained without the knowledge of the companies concerned in its ruling of 29 April 2009, despite the (...)

Christophe Lemaire, David Spector, François Lévêque, Michaël Cousin, Philippe de Ladoucette, Simon Genevaz NOME act I : A legislative framework for the opening of the French electricity market

2329

The law establishing a New Organisation for the Electricty Market provides for a temporary regulation which aims at removing the obstacles to the development of competition on the French electricity market. Its purpose is in particular to solve the margin squeeze resulting from the difference (...)

Christophe Lemaire, Michaël Cousin Non-contest procedure – Leniency: The French Competition Authority accepts to apply the non-contest procedure and the leniency programme outside their formal scope of application (Road signs cartel)

1038

Concordance No. 10-D-39 of 22 December 2010 on practices implemented in the vertical road signage industry The present case, which concerns a cartel for the allocation of public procurement contracts in the road sign market and to which were added exclusionary practices, two of which have been (...)

Christophe Lemaire, Michaël Cousin Inspections : The European Court of Human Rights censures the French inspections regime which existed before the ordinance of 13 November 2008 and calls the transitory regime into question (Canal Plus ; Primagaz)

1352

ECHR, 21 December 2010, Canal Plus a.o. v. France, 29408/08 ECHR, 21 December 2010, Primagaz v. France, 29613/08 The Canal Plus and Primagaz judgments of the European Court of Human Rights ("ECHR") are likely to have a significant impact on ongoing litigation that gave rise to nationwide (...)

Christophe Lemaire Leniency: The French Competition Authority closes a case in which it received two leniency applications because of the misleading documents that were submitted and calls their obligation to cooperate into question (LPG)

1303

Concordance No. 10-D-36, Dec. 17, 2010 on practices in the packaged liquefied petroleum gas (LPG) sector The fifth decision implementing the leniency procedure adopted by the French Competition Authority will certainly be one of the important leniency decisions, but not for the scale of the (...)

Christophe Lemaire Inspections: The Paris Court of Appeal orders an expert report for the purpose of checking whether a selective seizure of emails is possible without affecting their authenticity (SADE-CGTH)

1262

CA Paris (ord.), ch. 5-7, 2 November 2010, SADE-CGTH v/ Competition Authority, RG 10/01894, relating to challenges to the regularity of the conduct of visits and seizures carried out on 15 December 2009. CA Paris (ord.), ch. 5-7, November 2, 2010, X c/ Competition Authority, relating to (...)

Christophe Lemaire Conformity with the constitution: The Court of Cassation refers an application for priority preliminary rulings on the issue of constitutionality but rejects eight others applications (Système U)

1130

Cass. com, 15 October 2010, Système U and GALEC, No. 10-40039 Cass. com, October 15, 2010, Expedia, n° 10-14881 Cass. com, October 15, 2010, Karavel, n° 10-14866 Criminal Records, 20 October 2010, Piwnica and Molinié, No. 10-81748. Criminal Case, 20 October 2010, Hémery and Thomas-Raquin, No. (...)

Christophe Lemaire Regional and departmental state services: The Government determinates the administrative authorities competent to mediate or start civil or administrative proceedings concerning consumer and competition issues and to represent the French Ministry of Economy in application of article L. 470-5 of the French Commercial Code

985

Decree no. 2010-687 of 24 June 2010 relating to the organisation and missions of State services in the Ile-de-France region and departments Decree no. 2010-1010 of 30 August 2010 on the designation of the administrative authorities competent to settle or refer matters to the civil or (...)

Christophe Lemaire, Michaël Cousin Failure to comply with commitments: The French Competition Authority fines for the first time failure to comply with commitments in the context of a non contest procedure (Neopost/Satas)

1703

Aut. conc. dec. no. 10-D-21 of 30 June 2010 relating to compliance by Neopost France and Satas with the commitments made in Competition Council decision no. 05-D-49 of 25 July 2005. The Neopost v Satas decision is the first in which the AdlC sanctions non-compliance with commitments made in (...)

Christophe Lemaire Conformity with the Constitution: The Court of Cassation either refuses to refer or deems inadmissible the first applications for a priority preliminary rulings on the issue of constitutionality regarding competition rules (Banques ; Société des Eaux de Marseille ; Total Réunion ; Randstad ; Produits Isolants)

1199

Criminal Code, 15 June 2010, Banks, No. 09-86073. Cass. crim. 15 June 2010, Société des eaux de Marseille, No. 10-80018. Cass. ass. plen. 18 June 2010, Total Réunion, No. 09-72655 Cass. com, 17 September 2010, Randstad, No. 10-13686 Criminal Code, 22 September 2010, Insulation Products, No. (...)

Christophe Lemaire, Michaël Cousin Passing-on defence: The Court of Cassation cancels a decision of the Court of Appeal refusing the “passing-on defence” (Ajinomoto Eurolysine/Doux aliments Bretagne e.a.)

2945

Cass. com, 15 June 2010, Ajinomoto Eurolysine v/ Doux aliments Bretagne e.a., n° 09-15816 While the end of the year is marked by the relaunch at Community level of the debates on private action (see not. J. Alumnia, "Common standards for group claims across the EU", Speech 10/554 of 15 Oct. (...)

Christophe Lemaire Access to file: The Paris Court of Appeal aligns itself with the Cour de Cassation as regards access to file in the commitments procedure (Canal 9 ; GIE Les Indépendants ; Local radios to national advertisement)

1312

CA Paris, ch. 5-7, 1 June 2010, Canal 9 c/ GIE Les Indépendants on remand after cassation, against Cons. conc. 06-D-29 of 6 October 2006 relating to practices implemented by the GIE Les Indépendants in the radio advertising sector We will not return to the circumstances of the Canal 9 case, in (...)

Christophe Lemaire, Simon Naudin Dawn raids - Validity of the transitory regime: The Paris Court of Appeal confirms in two rulings the legality of the transitory regime applying to appeals against the ordinances which authorised search and seizure operations before the entry into force of the ordinance of 13 November 2008 (Colas Rail ; Veolia Transport ; Public passenger transport)

1324

CA Paris, ch. 5-7, June 15, 2010, Veolia Transport and others. on remand after cassation, against Cons. conc. 05-D-38 of July 5, 2005, urban public passenger transport market CA Paris, ch. 5-7, June 29, 2010, Colas Rail e.a. against Aut. conc., Dec. no. 09-D-25 of 29 July 2009, practices of (...)

Christophe Lemaire, Simon Naudin New market test: The French Competition Authority issues two new decisions and a new market test at the national level (Secteur des coupons de réduction ; Conseil général du Pas-de-Calais ; Michelin ; Kléber)

1473

Aut. conc. dec. no. 10-D-18 of 14 June 2010 relating to practices implemented by the Pas-de-Calais General Council, the Groupement de défense sanitaire du bétail du Pas de Calais and the Groupement technique vétérinaire du Pas de Calais Concordance No. 10-D-20 of 25 June 2010 on practices (...)

Christophe Lemaire, Simon Naudin Hearing officer: The French Competition Authority renders a first decision following a report from the hearing officer and rules on the transmission of documents by the CEO of a competitor of the company prosecuted, who was also a member of the decision-making body of the former Conseil de la concurrence (Carrefour)

1703

Aut. conc. dec. no. 10-D-08 of March 3, 2010 relating to practices implemented by Carrefour in the local general food retail sector This decision of the Competition Authority, relating to practices implemented by Carrefour with regard to its franchise network, is particularly noteworthy in (...)

Christophe Lemaire, Simon Naudin Leniency procedure - Access to file: The Court of Cassation confirms its case law on access to file in the context of the leniency procedure (Distribution of pharmaceutical products)

1524

It will be recalled that the Court of Cassation, in its ruling on the commitments of the GIE les Indépendants, established the principle that, in the context of the commitments procedure, the parties have a right of access to the entire file, subject only to the documents falling under the (...)

Christophe Lemaire Digital inquiries: The Paris Court of Appeal rules on the delicate balance between the parties’ right of access to the file and the outcome of the electronic mailboxes seized (Manpower)

1601

CA Paris, ch. 5-7, 26 January 2010, Adecco, ADIA, Manpower and others.against Cons. conc., Dec. no. 09-D-05 of 2 February 2009 on practices in the temporary work sector The case of temporary employment provides a new opportunity for the Court of Appeal to rule on the rules on business secrecy. (...)

Christophe Lemaire Leniency and settlement procedures: The Paris Court of Appeal explains the leniency and settlement procedures in the steel and iron trade case but leaves many questions unanswered (AMD Sud-Ouest)

2147

CA Paris, ch. 5-7, 19 January 2010, AMD Sud-Ouest and others. against Cons. conc., Dec. no. 08-D-32 of 16 December 2008 on practices in the steel products trading sector The decision of the Paris Court of Appeal of 19 January 2010 in the steel products trading case, which is commented on (...)

Christophe Lemaire, Simon Naudin Scope of the privilege of proceedings : The French Court of cassation rules on the scope of the privilege of proceedings before the Competition authority in the context of proceedings before civil Courts (Semavem c/ JVC)

1985

While the scope of the secrecy of criminal investigations has been the subject of extensive case law, the exact scope of the secrecy of the investigation before the Competition Authority guaranteed by Article L. 463-6 of the French Commercial Code had never, to our knowledge, been specified by (...)

Christophe Lemaire, Simon Naudin Commitments: The French Competition Authority and the European Commission render several decisions in application of the commitments procedure (iPhones ; Téléphériques de la Grande Motte ; TDF - Access to broadcasting facilities ; EDF)

1626

Aut. conc. dec. no. 10-D-01 of January 11, 2010 on practices implemented in the distribution of iPhones Concordant Aut. dec. no. 10-D-06 of February 26, 2010 relating to practices implemented by the Société des Téléphériques de la Grande Motte (SGTM) Convening Decision No. 10-D-09 of 9 March 2010 on (...)

Christophe Lemaire, Simon Naudin Transitory regime: The Paris Court of Appeal approves the transitory regime applying to appeals against the ordinances which authorised search and seizure operations before the entry into force of the ordinance of 13 November 2008 (School transport in Pyrénées orientales)

1932

CA Paris, ch. 5-7, January 5, 2010, operating company of the company Pontasy, SARL and Transports Cerdans companyv. Council, Dec. No. 09-D-03 of 21 January 2009 on practices implemented in the school and interurban bus transport sector in the Pyrénées-Orientales department In this case, the (...)

Christophe Lemaire Leniency programmes: The European Competition Network publishes its first report on assessment of the state of convergence of leniency programmes in Europe (ECN Model Leniency Programme)

3029

ECN Model Leniency Programme, Report on Assessment of the State of Convergence, 15 October 2009 While the adoption of Regulation 1/2003 has substantially amended the rules implementing Articles 81 and 82 of the EC Treaty, it does not provide a formal legal basis for the harmonisation of (...)

Christophe Lemaire Commitments - Art. 6.1 ECHR : The Paris Court of Appeal assesses the impact of the specificity of the commitments procedure on the parties’ rights (Canal 9/GIE Les Indépendants)

1827

CA Paris, ch 5-7, 6 October 2009, Canal 9 / GIE Les Indépendants, on referral after cassation, against Cons. conc. dec. no. 06 D-29 relating to practices implemented by GIE Les Indépendants in the radio advertising sector. The G.I.E. Les Ind épendants case, which gave rise to the decision (...)

Christophe Lemaire Access to file: The Paris Court of Appeal carries on with its specific views of the parties’ rights to access to file regarding commitment procedure (Canal 9/GIE Les Indépendants)

1898

CA Paris, ch 5-7, 6 October 2009, Canal 9 / GIE Les Indépendants, on referral after cassation, against Cons. conc. dec. no. 06-D-29 relating to practices implemented by GIE Les Indépendants in the radio advertising sector. The decision of the Paris Court of Appeal in the Canal 9 case (see this (...)

Christophe Lemaire Commitments procedure : The French Competition Authority and the European Commission issue new applications of the commitments procedure (Cabines de photographies d’identité ; Microsoft)

2231

Const. aut. market test, July 16, 2009, Passport photo booths EC Commission, com. art. 27,§4 R. 1/2003, Microsoft (Tied selling), aff. COMP/C-3/39.530, OJEU No. C. 242 of 9 October 2009, p. 20 We would point out the publication of two market tests, one at national level and the other at (...)

Christophe Lemaire Interim measures: The French Competition Authority adopts several decisions on interim measures (Eco-emballages ; DKT/Eco-Emballages ; Janssen-Cilag ; Euris/Cegedim ; Mobile Telephony ; Valeur ajoutée système d’information)

2657

Council Decision No. 09-D-22 of 1 July 2009 on the preparation of a geographical information system project for the collection and treatment of waste by the company Eco-emballages. Council Regulation (EC) No 09-D-26 of 26 July 2009 on an application for interim measures submitted by DKT (...)

Alain Ronzano, Christophe Lemaire, Virginie Beaumeunier Virginie BEAUMEUNIER (French Competition Authority): A new General Rapporteur for the French Competition Authority

5780

Pourriez-vous présenter en quelques mots votre parcours ? Qu’est-ce qui dans l’expérience que vous avez acquise à la DGCCRF vous semble pouvoir être utilement mis au profit de l’Autorité de la concurrence ? Comment comptez-vous mettre en ?uvre en pratique la prérogative reconnue au rapporteur général (...)

Christophe Lemaire Leniency - Evidence: The French Competition Council recalls its position related to the admission and the value of the evidences in a leniency procedure (Cartel in the steel industry)

2674

Conc. conc. dec. no. 08-D-32 of 16 December 2008 on practices implemented in the steel products trading sector Also in the steel trading case, the Competition Council was called upon to take a position on another leniency issue, that of the admissibility and probative value of the evidence (...)

Christophe Lemaire Commitments: The French Competition Council and the European Commission issue new applications of the commitments procedure (Taxis UAT Abeilles, Pompes funèbres de Marseille, E.ON)

3573

Concordant Consensus, Dec. 08-D-26 of 5 November 2008 relating to practices implemented by the economic interest grouping (EIG) of UAT Abeilles taxis. Cons. conc. dec. no. 08-D-34 of 22 December 2008 relating to practices implemented by the municipal funeral directorate of Marseilles EC (...)

Christophe Lemaire Appeal - Time limits: The Paris Court of Appeal reveals some interesting points on computation of the time limit for appeal against the decisions of the French competition Council (Vergers de la Motte)

3475

CA Paris, 1st ch. H., October 15, 2008, SCEA Vergers de la Mottev. Council, Dec. No. 07-D-18 of 16 May 2007, cider and cider apple sector CA Paris, 1st ch. H, November 5, 2008, Conseil départemental du Nord de l’ordre des médecinsv. Council, Dec. No. 07-D-41 of 28 November 2007, calls for tenders (...)

Christophe Lemaire Non contest procedure / Leniency: The French Competition Council issues new applications of the non contest procedure, among which one in association with the leniency procedure (Cie. Financière Participation Roullier, Cartel in the steel industry, Annecy and Haute-Savoie coach transport...)

2826

Const. dec. no. 08-D-20 of October 1, 2008 relating to practices implemented by subsidiaries of Compagnie Financière et la Participation Roullier. Conc. conc. dec. no. 08-D-29 of 3 December 2008 relating to practices noted in the sector of public contracts for maintenance, joinery and metalwork, (...)

Christophe Lemaire Criminal antitrust: A French criminal Court rules on new criminal conviction and first damage compensation for a local authority (Marchés de travaux publics routiers en Seine-Maritime)

3288

Trib. corr. Rouen, September 11, 2008, "travaux routiers en Seine-Maritime", published in the "Textes Officiels" section of the Moniteur n° 5474 of Oct. 24, 2008. Without going into the merits of this case - the examination of which is beyond the scope of this column - we will simply point out (...)

Christophe Lemaire Criminal antitrust proceedings: The Paris Court of Appeal rules on communication of documents on the basis of Art. L 463-5 C. com. (Secondary Schools in the Ile-de-France region)

3826

CA Paris, 1st ch. H, 24 June 2008, France Travaux SA and others.v. Council, Dec. No. 06-D-07 bis of 21 March 2006, public works in the Ile-de-France region CA Paris, 1st ch. H, 3 July 2008, Eiffage Construction SAS and others.v. Council, Dec. No. 07-D-15 of 9 May 2007, public contracts (...)

Christophe Lemaire Prescription - Interruption - Criminal antitrust proceedings: The Paris Court of Appeal upholds that any measure which interrupts prescription of criminal proceedings interrupts in the same time prescription of administrative proceedings sanctioning anticompetitive behaviour (Public procurement contracts in the Ile-de-France area)

5242

CA Paris, 1st ch. H, 24 June 2008, France Travaux SA and others.v. Council, Dec. No. 06-D-07 bis of 21 March 2006, public works in the Ile-de-France region It will be remembered that in 2001 the NRE Act added a new paragraph to Article L 420-6 of the French Commercial Code which provides that (...)

Christophe Lemaire Evidence: The Court of Cassation rules that sound recordings carried out without the knowledge of the author of the sound is unfair means of evidence (Sony France et Philips France)

3890

Cass. com, June 3, 2008, Sony France and Philips France, No. 07-17.147 and 07-17.196, Consumer Electronics Products affair. The Court of Cassation was called upon to rule, in a long-awaited decision, on the question of whether recordings of telephone conversations made without the knowledge of (...)

Alain Ronzano, Christophe Lemaire, Laurence Idot, Nicolas Charbit, Robert Saint-Esteben, Valérie Michel Amsellem Laurence IDOT (University Paris II Panthéon-Assas) - Valérie MICHEL-AMSELLEM (French Civil Supreme Court) - Robert SAINT-ESTEBEN (Bredin Prat): Reform of French competition law

9484

Début 2007, la revue Concurrences avait publié les entretiens croisés des deux principaux candidats à l’élection présidentielle française . Mme Ségolène Royal et M. Nicolas Sarkozy avait alors accepté de contribuer au débat en répondant à une série de questions portant sur le droit interne et communautaire (...)

Christophe Lemaire Hardcore restriction: The Paris Court of Appeal rules on the consequences of a former decision by the competition authority on its own procedure (Pacific Création)

4024

CA Paris, 4ème ch. B, April 18, 2008, PMC distribution c/ Pacific Création, RG 07/04360 This judgment will be posted on the European Commission’s website. While it is of particular interest for the issues related to selective distribution and Internet sales, it is also worth mentioning for its (...)

Christophe Lemaire Antitrust criminal proceedings: The Court of Cassation adopts a variable approach with regards to prescription on the basis of Art. L 420-6 C. com. (SNF c/Cytec Industries)

4189

Homicide, February 20, 2008, X... Michel and others, n° 02-82.676 and 07-82.110, "Lycées d’Ile de France". Criminal Case, 19 March 2008, SNF v. Cytec Industries BV, No. 07-80.473. Article L. 420-6 of the French Commercial Code is still a cause for concern (see M.-P. and Cl. Lucas de Leyssac, (...)

Christophe Lemaire Withdrawal of the benefit of a block exemption: The Paris commercial Tribunal recalls that a national court has no jurisdiction to withdraw the benefit of a block exemption regulation (Turbo Europe c/Peugeot et Renault)

3684

T. com. Paris, 15ème ch., 13 March 2008, SARL Turbo Europe c/ SA Automobiles Peugeot et SAS Renault, RG 2006/008432 Let us mention this judgment of the Paris Commercial Court of 13 March 2008, which is relevant to the proceedings in at least two respects. In the present case, the action was (...)

Christophe Lemaire, Michel Petite, Michel Waelbroeck Conference - "Competition law and the Lisbon Treaty": What will be the impact of the new Treaty on competition law? A legal point of view

6464

Since we have been talking about pedagogy several times since the beginning of the morning, this panel will give us the opportunity to put these recommendations into practice right away. Indeed, what we have been asked to do is to take a legal look at the impact of the new treaty on competition (...)

Christophe Lemaire Transfer of competition case to civil/commercial Courts: The President of the French Competition Council applies for the first time the power to refer a case to the commercial Courts on the basis of Art. L. 442-6 C. Com. (Toys distribution)

4336

Council Decision No 07-D-50 of 20 December 2007 concerning practices in the toy distribution sector The recent Toys case offered the Competition Council the first opportunity to implement the provisions of Article L. 442-6 III of the French Commercial Code. It will be recalled that the NRE Act (...)

Christophe Lemaire Leniency - 100 % fine immunity: The French Competition Council adopts its second decision applying the leniency procedure (National and international moving sector)

4513

Conc. conc. dec. no. 07-D-48 of 18 December 2007 on practices implemented in the national and international removals industry On December 18, 2007, the Competition Council, for the second time since its introduction by the NRE Act of 2001, applied the leniency procedure provided for in Article (...)

Christophe Lemaire Leniency - Non-contest procedure: The French Competition Council goes on with the definition of its policy for the application of the non-contest and leniency proceedings (Vosges district waste removal - National and intn. moving - Toy distribution)

4551

Conc. conc. dec. no. 07-D-40 of 23 November 2007 relating to practices that have affected the award of public contracts for the collection of household waste in the Vosges department Conc. conc. dec. no. 07-D-48 of 18 December 2007 on practices implemented in the national and international (...)

Christophe Lemaire Dismissal of objections - Interim measures: The French Competition Council adopts a new treatment of the undertakings subject to a procedure of dismissal of objections (Paris/London rail route)

4171

Conc. conc. dec. no. 07-D-39 of 23 November 2007 relating to practices implemented in the passenger rail transport sector on the Paris-London route On 18 November 2004, Bristish Airways brought a case before the French Competition Council against practices implemented by France Rail Publicité, (...)

Christophe Lemaire Dawn raid: The Court of Cassation censures the "juge des libertés et de la détention" about an ordinance cancelling seizure of documents and gives a wide interpretation of the DGCCRF’s powers under Art. L. 450-4 C. com. (Canal Plus)

4035

Criminal Code, November 14, 2007, Canal Plus and Canal Plus Group, No. 05-85.739. This was a stop that had to be greeted with the greatest fervour by the DGCCRF at the end of 2007 . On November 14, 2007, the Criminal Division of the Court of Cassation completely censured two orders issued by (...)

Christophe Lemaire Prescription - Interruption : The Court of Cassation censures the Paris’ Court of appeal for its attempt to control the purpose of the action taken regarding the investigation, acknowledgement or penalization of the facts and adopt a restrictive approach of the notion of “action” (DBS, Sort et Chasle et Somoclest - Unidoc)

4218

Cass. com, 6 November 2007, Minister of the Economy / DBS, Sort et Chasle, Somoclest, n° 06-16.194 Cass. com, 6 November 2007, Minister of the Economy / Unidoc, n° 06-17.881 In two rulings handed down on 6 November 2007, the French Supreme Court clarified the rules governing interrupting acts of (...)

Catherine Hammon, Christophe Lemaire, Jean-Paul Tran Thiet, Michaël Cousin, Nigel Parr, Pierre-Alain Jeanneney Market Regulators: Towards a better institutional and procedural framework?

6812

The multiplication of "market authorities" - competition authorities and sectoral regulators - and the development of their means of action on the market raise the question of the coherence and the convergence of the institutional and procedural framework in which they operate. After a general (...)

Christophe Lemaire Minister’s submission to the NCA: The French Competition Council rejects a Minister’s submission for lack of sufficient evidence... (Air transportation to Antilles)

4333

Conc. conc. dec. no. 07-D-19 of 24 May 2007 on practices implemented in the air transport sector with regard to services to the West Indies In a previous issue of this column, we reported on the Competition Council’s use of the procedure for dismissal for lack of sufficient evidence (see this (...)

Christophe Lemaire Appeal - Role of the Regulator: The Court of Cassation refuses to grant the ARCEP a right to present observations on the appeal-in-law introduced against the judgement held in a case challenging one of its decisions (Western Télécom/France Telecom)

4382

Cass. com, December 12, 2006, Société Western Télécom / France Telecom, n° 05-19.610 The ruling handed down by the Commercial Chamber of the Court of Cassation on 12 December 2006 certainly deserves attention for more than one reason. However, in the context of this column we will limit ourselves (...)

Christophe Lemaire Competences: The French Competition Council illustrates successful articulation of complaints lodged before both itself and ordinary jurisdictions in the case of a tender (Imagerie Médicale du Nivolet; SNCM)

4663

Conc. conc. dec. no. 06-MC-03 of 11 December 2006 on requests for provisional measures in the maritime transport sector between Corsica and the mainland Concordant Consensus, Dec. n° 06-D-36 of 6 December 2006 relating to the practices implemented by civil society in the field of Medical Imaging (...)

Christophe Lemaire Simplified procedure: The French Competition Council indicates how the procedure goes on in the first send-back in the case of a simplified procedure (Imagerie Médicale du Nivolet)

4958

Concordant Consensus, Dec. n° 06-D-36 of 6 December 2006 relating to the practices implemented by civil society in the field of Medical Imaging of the Nivolet. Before reaching decision n° 06-D-36 of December 6, 2006, the referral to the SELARL Alpes Imageries Médicales concerning practices (...)

Christophe Lemaire Fines - Non-retroactivity: The French Competition Council rules on fines’ non-retroactivity in the specific case of multiple filings, some pre-dating and some post-dating the NRE bill (Imagerie Médicale du Nivolet)

4670

Conc. dec. 06-D-36 of 6 December 2006 on practices implemented by civil society in the field of Medical Imaging of the Nivolet. Decision n° 06-D-36 of 6 December 2006 relating to practices implemented by the civil society of Medical Imaging means of the Nivolet recalls the position adopted by (...)

Christophe Lemaire Prescription: The French Competition Council takes into consideration the recent case-law of the Paris CA relating to the nature of interruptory acts (Travaux publics dans la région Auvergne)

4894

Conc. conc. dec. n° 06-D-33 of 8 November 2006 relating to practices implemented within the framework of public works contracts for buildings in the Auvergne region It will be recalled that, in a judgment of 23 May 2006, the Court of Appeal ruled that a summons by a rapporteur for a hearing (...)

Christophe Lemaire Judicial review of merger commitments: The French Competition Council rules on its competence to assess practices in the course of the execution of commitments (Finegee c/ Heineken)

4423

Conc. conc. dec. no. 06-D-31 of 20 October 2006 relating to the request for protective measures submitted by Finegee against the Heineken France Boissons group While the debate on the relationship between the law on anti-competitive practices, and in particular cartels, and merger law has for (...)

Christophe Lemaire Mitigation of the fine: The French Competition Council rules on whether the mere acknowledgment of a participation in a cartel is an attenuating circumstance (Cathédrale de Rouen)

5073

Const. dec. n° 06-D-25 of 28 July 2006 relating to practices identified during the restoration of the bell tower heritage of Rouen Cathedral. This is a relatively classic procurement cartel case. It is perhaps distinguished from other cases of this type by the fact that there is no procedural (...)

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