La faute lucrative en droit de la concurrence, Godefroy de MONCUIT DE BOISCUILLÉ

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This book is the result of the awarding of the prize of the magazine Concurrences for the year 2019, in conjunction with the awarding of the Jacques Lassier Prize by the International League of Competition Law, to a thesis directed by Professor Muriel Chagny. Godefroy de Moncuit defended his thesis in 2018 at the University of Versailles Saint-Quentin-en-Yvelines. Its publication led the author to an update as of July 24, 2020, which is to be commended for the effort it represents, especially as its scope is particularly broad. Indeed, the author intends to identify and criticize the way in which profit-making misconduct is apprehended in both the public and private spheres. This global approach is useful and makes it possible to carry out an unsatisfactory assessment of our positive law with regard to an economic and managerial analysis. After having noted, in a first part, the limits of our positive competition law, he proposes to reinforce its effectiveness in a second part. He then goes on to strengthen its effectiveness in the third part.

It is all the interest of this thesis to focus, for the first time, the study of profit misconduct on competition law. It is true that the law of anti-competitive practices is privileged, but there are significant developments on the law of restrictive practices, unfair competition law and parasitism. The starting assumption is that profit-making misconduct is not captured by the law in such a way as to encourage compliance with competition rules. Thus, in the public sphere, it is not permissible for the fine to tend towards the restitution of the unlawful profit. The same applies in the private sphere to compensation for damage. As a preliminary, a penetrating analysis of behavioural economics is drawn up. As a result, it does not offer an alternative to the deterrence model based on rationalhomo œconomicus . However, it is complementary to it in that it sheds light on the margin for progress in relation to a limited and failing rationality, widely accepted by Jean Tirole.

The limits of public action are then dealt with without concession. The lack of effectiveness of standards is the result of the difficult detection of cartels and, with regard to anti-competitive practices, of the challenges posed by the digital economy, in particular the awareness of the challenges posed by the play of algorithms. As for the limited effectiveness of standards, this is due to the strategies inherent in the theory of the’bad man’, in the sense of Holmes’ theory, which emerged in 1897 and which instrumentalize negotiated procedures and exploit strategies of normative capture. The limits of private action are hardly surprising: the assessment of competitive harm left too long in indifference, then the technicality of the methods of analysis; group action rightly qualified as a "pathological norm" and once again the strategies inherent in the"bad man" theory on investigative measures and procedural defence strategies.

The second part moves on to proposals for strengthening the effectiveness of competition law. Here, attention is focused on the concept of fault with a close discussion on the treatment of Type I and Type II errors. It is a call to overcome ideological tensions and technical difficulties in testing. With regard to private actions, the author proposes to facilitate them by a generalised presumption on the model of unfair competition. He also recommends the consecration of the principle of appraisal which would correct the negative perception of the principle of full reparation.

Finally, the third part focuses on the improvements to be made to the effectiveness of competition law. It is here that the theory of the optimal fine for the company, but also for the managers, is discussed and rethought. It is indeed appropriate to focus on the latter. In-depth developments lead to the proposal of criminal sanctions for their "disqualification". In addition, a particularly offensive confiscatory group action is proposed.

The thesis ends with a synthesis report with recommendations and proposals. It is followed by two appendices giving a numbered exploration. Annex 1 presents a summary table from 2008 to 2018 on the difference between the fine imposed and the confiscatory fine. Annex 2 presents a table summarising the risk of financial misconduct with regard to free riding.

Godefroy de Moncuit has a striking approach that suits our times. The ideological approaches to the economy or its hypersophistication have bogged down the effective application of competition standards with this risk of false positive error. They have led to a hyper-concentration of markets, particularly in the digital sector. Similarly, the theories of the right incentives and deterrence have not proved their worth, as the actions to replace illicit profits have left people with no clear idea of how to determine fines and damages due to victims. It has been demonstrated that it is necessary to think and act differently. Let us congratulate the author for tracing a little more deeply the path of this necessity. The time has come for other legal policy choices in competition law and tort law. The Commercial Chamber of the Court of Cassation sets the tone with the Cristal judgment by opening the way for an assessment of harm based on the "undue advantage" derived by a person "who frees himself from a regulation whose observance necessarily has a cost (...) and creates an economic disturbance" (Cass. com., 12 February 2020, 17-31.614, commented by Godefroy de Moncuit, Revue Lamy de la concurrence, No. 95, 1 June 2020). Let us salute the audacity of this "old lady", accompanied and supported by a young and promising author. Their combined action restores a little optimism in the face of overwhelming findings.

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  • University of Paris I Panthéon-Sorbonne

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Catherine Prieto, La faute lucrative en droit de la concurrence, Godefroy de MONCUIT DE BOISCUILLÉ, November 2020, Concurrences N° 4-2020, Art. N° 97381, pp. 276-277

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