Bruxelles, Bruylant et Paris, Forum Européen de la Communication, collection de la Fondation pour l’Etude du Droit et des Usages du Commerce International, série Concurrence, 2005, 455 464 p.

Les inspections de concurrence, N. JALABERT

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The book comes with a CD-Rom and several annexes containing the relevant official texts, with a subtitle that serves as an explanatory memorandum: "Managing a competition investigation in the business world at a time when the fight against cartels is being stepped up".

As this title suggests, the author proposes to offer companies a practical guide to help them prepare for the new Community and French regimes applicable to competition inspections. The practical dimension of the book is first and foremost reflected in the plan chosen, which invites the company to ask itself before anything else what type of inspection it is facing: Community or national, heavy (by decision) or simple, without forgetting the inspections that are likely to develop, i.e. those carried out on delegation from the Commission or another national authority. In the same vein, each title, which therefore corresponds to a particular inspection, sets out successively the origin of the inspection, its conduct, the penalties associated with it and the means of redress available to undertakings. While the practical objective sought is undoubtedly achieved, the presentation used and the emphasis placed on strategic advice logically leads to certain repetitions.

With a focus on companies and the protection of their interests, this guide, which reflects real-life experience, promotes collaboration with investigators. Nevertheless, it is an appeal to companies to ensure that, by means of appropriate preparation, they can, if necessary, assert their rights in the context of investigations in which the absence of expressed opposition is usually tantamount to implicit authorisation. With this in mind, N. Jalabert-Doury does not fail to stress the legal problems likely to arise from recent reforms of the law applicable to Community and French inspections. For example, the modernisation of Community rules is helping to renew the question of the conformity of inspections with the European Convention for the Protection of Human Rights. This problem arises in particular when examining the question of the extent of the powers of investigators with regard to access to "other premises", lawyer/client privilege, affixing of seals, oral statements, etc.

The author also does not overlook the observable differences between Community law and French law in the field of inspections and the difficulties linked to their articulation. In certain respects, these differences result in a more developed regime in domestic law which can work to the detriment as well as to the benefit of companies. This more developed nature is manifested through a potentially broader purpose of inspections, corresponding to Book IV of the Commercial Code, a requirement that inspections must be thoroughly reasoned and greater control by the judge in his role of issuing an order, an order which is more detailed than that issued for the purpose of carrying out a Community inspection (by decision).

Genuine searches, the so-called "heavy" French inspections are also characterized by the granting of powers to the judge during the inspection, a right of access in the absence of the occupant of the premises, the possibility of searching and the right to seize originals. In other respects, however, it is Community law that appears to be more developed and potentially stricter. This strictness is discernible in particular with regard to the powers left to Community officials in respect of oral statements (on this question, V. N. Jalabert-Doury, Les déclarations en droit de la concurrence, La preuve d’infraction peut se satisfaire de " certitudes probables ", Concurrences, n° 2-2005, p. 41). Under these conditions, and in the absence of safeguards, there is a risk that investigators may borrow from each of the regimes the provisions that are the most restrictive for companies in order to increase their powers. This already patchy picture would be doubly critical if there were no mention of the new issues raised by access to files and other computer networks in the course of inspections.

Under these conditions, the reader will have understood that beyond its eminently practical dimension, this book, through the problems highlighted, gives a glimpse of the source of future litigation, even if the remedies available to companies are deemed unsatisfactory in several respects.

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  • General Court of the European Union (Luxembourg)

Quotation

Jérôme Gstalter, Les inspections de concurrence, N. JALABERT, September 2005, Concurrences N° 3-2005, Art. N° 12664, pp. 161-162

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