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For a New Deal in Competition Law: An Open Letter to the French President

*This article is an automatic translation of the original article, provided here for your convenience. Read the original article.

Following the presidential election of April 24, 2022, the Editorial Board of the magazine Concurrences has launched a call to its readers to make proposals for reform to the President of the Republic and his new Government. The proposals below have been suggested by the readers of the magazine mentioned below, without any of them being attributed to any particular person. Without wishing to take a position on any of these fifteen proposals, Concurrences wishes to bring to everyone’s attention the expectations and concerns expressed by the various players in the competition community in the form of an open letter to the President of the Republic. This open letter is a follow-up to the dossier published in the 2-2022 issue of the Journal: "Emmanuel Macron, Minister and President : a rather positive competition record".

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1. Ensure that environmental issues are better taken into account in competition policy

Competition policy must provide greater incentives for private sector actors to play an active role in achieving the environmental objectives of the new five-year period. This objective can be achieved by explicitly taking into account in the legislation environmental efficiencies, as being likely to justify a cartel practice or abuse of dominant position, and sustainable development, under the heading of ’reasons of general interest other than the maintenance of competition’ allowing the Minister in charge of the economy to evoke a merger and to rule on it

2. Harmonizing national competition laws within a European Business Code

The European Business Code project aims to put the law back at the heart of European construction, and to consolidate the Economic and Monetary Union by backing it up with a unified business law. This project has received the support of the French and German governments and parliaments. The text takes up, for the most part, the European acquis, and proposes several changes that will make this law more accessible, more readable and thus more predictable.

3. Continue the reform of the regulated professions

A series of ambitious reforms of the regulated professions has been initiated under the leadership of various Ministers of the Economy, including Mr. Emmanuel Macron. These reforms must be continued and deepened in order to fully bear fruit and should in particular be extended to legal monopolies such as that of bailiffs and lawyers.

4. Relaunching competition in the French overseas territories

In response to the specific problems of the high cost of living in overseas France, the creation of a competition authority in each overseas department and region will enable the implementation of a competition policy that is closer to businesses and consumers. In addition to the missions already entrusted to the Competition Authority, in order to be fully effective, these new authorities will have to deal with restrictive competition practices as well as consumer law and in particular price regulation.

5. Strengthen the teaching of economics and in particular competition economics in high schools and business schools

The awareness of all citizens of the importance of the principle of free and undistorted competition requires the teaching of economics and in particular of the economics of competition. This teaching must be provided in high schools and in commercial training courses.

6. Strengthening the resources of the Paris Court of Appeal

The Court of Appeal still has too limited means to control the decisions of the Competition Authority (which is only one of the competences of the Competition and Regulation Division). It is therefore necessary to strengthen its resources. In addition, to ensure the stability of the competition division and to further strengthen its specialization in competition law, consideration should be given to the relevance of appointing qualified persons (for example, legal and economic academics) to the side of the judges, as is the case for the Court of Cassation.

7. Strengthen the protection of whistleblowers and provide them with compensation

Several OECD countries pay whistleblowers for exposing cartels. These payments provide an incentive to report illegal and covert behavior and provide protection in the form of financial assistance to cover living expenses or legal costs in the event of retaliation. At a minimum, legislators should provide whistleblowers with compensation to ensure the effectiveness of the fight against cartels.

8. Use existing tools to criminally prosecute cartel participation

The policy of sanctioning cartels is currently limited in practice by the amount of fines that companies can pay. Depending on the company and the sector, these amounts are either too low and not dissuasive enough, or, on the contrary, they risk stifling innovation and employment. The reinforcement of criminal sanctions against companies and managers will make it possible to overcome these limitations.

9. Encourage group actions by introducing an opt-out

The group actions introduced by a European directive suffer in France are not fully used by companies and consumers. In order to free up these private actions, the current opt-in mechanism should be replaced by an opt-out.

10. Take into account the existence of a compliance program when setting fines

In its framework document of May 24, 2010, the French Competition Authority (Autorité de la concurrence) emphasized the importance it attaches to companies’ compliance policies, but did not take the existence of a compliance program into account when setting fines, in contrast to many European and foreign regimes. In order to truly promote competition compliance in companies, the AMF must commit to taking into account the existence of such programs.

11. Make the Trade Practices Review Commission an independent administrative authority

In order to prevent and repress restrictive competition practices (CRP), it is necessary to create an independent administrative authority with its own budget, a power of detection, intervention, control and sanction. Indeed, the control of CRPs will be more effective by ensuring that a single authority deals with all practices, currently sanctioned either by the Administration or by a Commercial Court, whereas the Commission d’Examen des Pratiques Commerciales currently has no sanctioning power.

12. Reforming the role of the Hearing Officer before the Competition Authority

The role and functions of the Hearing Officer before the Competition Authority should at least be aligned with those of the Hearing Officer before the European Commission in order to ensure that the rights of defense of the companies being prosecuted are respected, in particular during hearings.

13. Stricter time limits for merger control

Merger control deadlines are excessively long, which is detrimental to the legal certainty of business combinations. Legislation is needed, firstly, to regulate the pre-notification period by setting a maximum duration, unless the merger control department decides to keep the file in the pre-notification phase, and, secondly, to ensure that phase 1 deadlines begin to run the day after the notification is filed, i.e. to put an end to the practice of receiving an acknowledgement of completeness after the fact.

14. Improving the transparency and enforceability of economic analyses

Economic analysis has become an essential complement to legal analysis in competition matters. However, parties to litigation or merger proceedings before the Authority do not have access to all the data and programs needed to reproduce the economic analyses submitted, in particular those of third parties and of the Authority’s services. In order to strengthen the rights of defense, reduce legal uncertainty and harmonize the practices of competition authorities, published decisions must adequately describe all sources, analyses and methodologies used.

15. Authorize the use of the English language before the Authority and the courts of first instance

In order to promote France’s position in European and international litigation, the use of English in competition proceedings before the courts of first instance and before the Competition Authority should be facilitated.

— With the contribution of Dorian Beauchêne, Ludovic Bernardeau, Didier Billaud, Etienne Bodéré, Hélène Bourguignon, Jacques Buhart, Anne-Sophie Choné-Grimaldi, Aurélie Dellac, Nicolas Genty, Pierre-Roch Moullec, Frédéric Pradelles, Jonathan Reb, Gérard Yeselnick...

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Authors

  • Concurrences (Paris)
  • Concurrences (London)
  • University of Paris I Panthéon-Sorbonne
  • L’actu-concurrence (Paris)

Quotation

Nicolas Charbit, Fanny Méjane, Christophe Lemaire, Alain Ronzano, For a New Deal in Competition Law: An Open Letter to the French President, September 2022, Concurrences N° 3-2022, Art. N° 106926, pp.2-4

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