Ashurst (Paris)

Simon Naudin

Ashurst (Paris)
Lawyer (Associate)

Simon Naudin is a lawyer at the Paris Bar and is an associate at the competition department of the Paris office of Ashurst LLP. He specialises in State aids, merger control, cartels, abuses of dominance and assistance to companies in case of investigations by competition authorities.

Linked author

University of Paris I Panthéon-Sorbonne

Articles

47499 Review

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)

133

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)

241

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)

130

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)

119

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, 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)

108

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)

360

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, 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)

275

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)

150

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)

392

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, 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)

209

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 (...)

Simon Naudin Proposal for commitments: The French Competition Authority submits to public consultation the commitments proposed in the energy sector as regards market offers tariffs (ENGIE)

119

On 21 March 2017, the French Competition Authority published the commitments proposed by ENGIE to address the competition concerns identified by the Authority in the context of the investigation of the case file that led to the adoption of Decision No. 16-MC-01 of 2 May 2016 on a request for (...)

Simon Naudin Incumbent operator: The French Competition Authority fines for abuse of dominant position the incumbent operator in the gas and electricity sector for the use of data collected under its legal monopoly activities (ENGIE)

167

On 21 March 2017, the Competition Authority adopted a decision following a settlement procedure (the seventh on that date), imposing a fine of €100 million on ENGIE for abusing its dominant position on the gas markets through practices likely to induce its customers to switch to its gas and (...)

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

252

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)

253

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)

260

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)

275

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)

184

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, 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)

195

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, 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)

185

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, 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)

162

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)

174

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)

343

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, 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)

218

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, 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)

261

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)

345

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)

303

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)

259

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)

302

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, 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)

316

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)

325

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)

207

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)

170

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, 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)

260

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

180

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)

377

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, 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)

122

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)

167

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)

223

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, 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)

187

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, 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)

186

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, 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)

243

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)

216

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, 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)

221

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, 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

196

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, 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)

366

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, 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)

202

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)

665

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)

355

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 (...)

Simon Naudin Search and seizure operations: The Court of Cassation approves the preservation of the anonymity of the leniency applicant in the file accessible to the companies subject to dawn raids (Secteur des produits d’entretien et insecticides ménagers)

179

Cass. crim. 7 March 2012, General Rapporteur of the Competition Authority, No. 11-80127, "household cleaning products and insecticides sector". In a decision of 7 March 2012, the Court of Cassation ruled on an order of the First President of the Versailles Court of Appeal, which had quashed an (...)

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)

311

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)

358

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)

380

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)

426

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)

537

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)

276

(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)

375

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)

260

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)

735

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)

271

(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)

254

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

255

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

347

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)

708

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

463

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)

453

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)

426

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)

520

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)

541

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)

953

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)

508

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)

641

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, 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)

649

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)

842

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)

741

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)

700

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…)

732

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, 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)

1191

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, 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)

1325

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)

1475

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)

1709

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)

1527

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, 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)

2003

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)

1630

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 (...)

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