Paris

Relationships between advisory procedure and judicial proceedings before the French competition authority

Antitrust Procedure Workshop organized by Concurrences in partnership with Gide Loyrette Nouel.

THE COMPETITION AUTHORITY’S SELF-REFERRAL FOR AN OPINION: A PROCEDURE THAT DOES NOT RAISE ANY COMPLAINTS

Claire Favre (Vice-President of the Competition Authority)

The Scope of Advisory Opinions: The Self-Raising Hypothesis

According to the authority, the ex officio opinion procedure allows it to : "to put forward its point of view whenever it considers it necessary, for example to propose avenues for reflection, to assess the competitive impact of texts in force, to enrich the preparation of regulatory or legislative […]texts. This faculty is fundamental insofar as it enables the Authority to act as a "competition advocate"[…], and to play an advisory and warning role, well upstream of the enforcement mission that is also its own. "(Authority’s website).

Marginal nature of self-referral and efforts to achieve transparency

However, it should be remembered that self-referral is rare: 1 case in 2009, 3 in 2010, 1 in 2011, 2 in 2012, 2 procedures opened in 2013. In this respect, the competition authority is fully transparent and endeavours to give reasons for its decision to open a procedure of ex officio referral. For example, in its decision of 26 February 2013 (Dec. No. 13-soa-02 on an ex-officio referral for an opinion on the competitive functioning of the market for scheduled interregional coach transport), it takes care to set out the context of the sector in question (characteristics of the market, potential gains for consumers resulting from effective competition). Only after a brief discussion does it decide to open the opinion procedure in order "to assess the current conditions of competition in the long-distance coach transport sector but also how the opening of interregional routes to competition could be encouraged". However, despite the very marginal nature of ex officio referrals and this effort to motivate, the reaction of companies has been quite strong. In particular, the recommendations issued by the authority in these opinions have been criticised for criticising market operators by constituting a kind of pre-decision.

Position of the Council of State

Photos © Léo-Paul Ridet.

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Speakers

  • White & Case (Paris)
  • University Paris II Panthéon‑Assas
  • Association des Professionnels du Contentieux Economique et Financier (Paris)