Cartel leniency in France: overview

A Q&A guide to cartel leniency law in France.

The Q&A gives a succinct overview of leniency and immunity, the applicable procedure and the regulatory authorities. In particular, it covers the conditions to be satisfied, the method of making an application, availability of immunity from civil fines to individuals, the scope of leniency, circumstances when leniency may be withdrawn, leniency plus, confidentiality and disclosure, and proposals for reform.

To compare answers across multiple jurisdictions visit the Cartel leniency Country Q&A tool.

This Q&A is part of the global guide to competition and cartel leniency. For a full list of jurisdictional Cartel Leniency Q&As visit www.practicallaw.com/leniency-guide.

For a full list of jurisdictional Competition Q&As, which provide a high level overview of merger control, restrictive agreements and practices, monopolies and abuse of market power, and joint ventures in multiple jurisdictions, visit www.practicallaw.com/mergercontrol-guide and www.practicallaw.com/restraintsoftrade-guide.

Contents

Regulation

1. What laws provide for a leniency programme and which regulatory authority administers it? Is there any published guidance?

Applicable laws and guidance

The French leniency programme was introduced by the New Economic Regulation Law (Loi sur les Nouvelles Régulations Economiques) (NRE Law) dated 15 May 2001, which was introduced by Articles L.464-2 IV and R.464-5 of the French Commercial Code.

The provisions of the NRE Law were clarified in the first procedural notice of 11 April 2006 of the French Competition Authority (Autorité de la concurrence) (FCA), which was published on its website (www.autoritedelaconcurrence.fr). No leniency decision had been issued before 2006, but 11 leniency decisions have been published since then (including decisions relating to foreign companies).

On 29 September 2006, the European Commission adopted the European Competition Network (ECN) Model Leniency Programme to encourage the members of the ECN (including France) to promote convergence between their different leniency policies. The European Commission revised its Model Leniency Programme in November 2012.

In 2006 the European Commission also adopted its Notice on immunity from fines and reduction of fines in cartel cases (OJ 2006 C298/17) (Commission 2006 Leniency Notice).

Since then, the FCA has revised its procedural notice of 11 April 2006 several times, particularly to follow more closely the revised ECN Model Leniency Programme of 2012. The latest notice published on the FCA's website follows a public consultation, and dates from 3 April 2015 (FCA 2015 Leniency Notice).

The FCA 2015 Leniency Notice follows the Commission 2006 Leniency Notice even more closely, in particular by:

  • Introducing fine-reduction ranges for type 2 leniency applications (although different in amounts) (paragraph 21, FCA 2015 Leniency Notice and paragraph 26, Commission 2006 Leniency Notice).

  • Stating that if a company is the first to provide evidence to establish additional facts which directly impact the FCA's fine (for example, additional duration), the FCA will not penalise the company on these facts when imposing a fine on that company (see paragraph 22, FCA 2015 Leniency Notice and paragraph 26, Commission 2006 Leniency Notice) (see Question 13).

The FCA 2015 Leniency Notice also clarifies the scope of leniency in the following respects:

  • Indicating that it also encompasses hub and spoke practices (paragraph 10) (see Question 2).

  • Stating that in the case of a leniency application filed first with the European Commission, a summary application can also be filed simultaneously with the FCA for all types of leniency (that is types 1 and 2, see Question 4), and not just for full immunity (see paragraph 43).

The FCA 2015 Leniency Notice also specified that only companies belonging to the "same economic unit" can be covered by a leniency application, which seems to exclude, in particular, former parent companies (paragraph 16).

Regulatory authority

The FCA is the competent authority for leniency applications. It was created by the Modernisation of the Economy Law (Loi sur la Modernisation de l'Economie) (LME Law) dated 4 August 2008. The FCA replaces the former Competition Council (Conseil de la Concurrence).

Within the FCA, it is the chief case handler (rapporteur général) who is empowered to receive leniency applications. Since 2011, the chief case handler has been assisted by a leniency officer (conseiller clémence).

 

Scope of application

2. What infringements of competition law does the leniency programme cover?

The leniency programme covers infringements of Article L.420-1 of the French Commercial Code, which is the equivalent of Article 101 of the Treaty on the Functioning of the European Union (TFEU).

The 2015 Leniency Notice specifies that the infringements covered are:

  • Cartels, including those relating to the following and similar:

    • price-fixing;

    • market-sharing;

    • sales quotas;

    • bid-rigging.

  • Hub and spoke practices (paragraph 10). Hub and spoke practices consist of horizontal anti-competitive practices (spokes) through a vertical link (hub).

The French leniency programme, just like the EU leniency programme, does not cover:

  • Abuse of a dominant position.

  • Vertical anti-competitive practices.

 

Recent cases

3. What notable recent cases have applied the leniency programme?

Full immunity

To date, the French Competition Authority (FCA) and the Competition Council have granted full immunity to the following applicants in ten cases:

  • Deutsche Bahn (case no. 15-D-19, 15 December 2015, relating to concerted practices in the parcel delivery industry). Although Deutsche Bahn was granted full immunity in the leniency opinion (see Question 10), it was eventually sentenced to a EUR3 million fine as it had omitted to inform the case handlers of an anti-competitive meeting, which it had attended, and therefore failed to satisfy one of its obligations, the communication of all information or evidence regarding the alleged cartel.

  • General Mills (case no. 15-D-03, 11 March 2015, relating to concerted practices in the fresh dairy products industry).

  • Rash (case no. 14-D-20, 22 December 2014, relating to concerted practices in the French wallpaper sector).

  • SC Johnson (for home care) and Colgate-Palmolive (for body care) (case no. 14-D-19, 18 December 2014, relating to concerted practices in the home and body care products sector).

  • Solvadis/Quaron (for price co-ordination and customer allocation) and Brenntag (for anti-competitive practices towards one specific client, GKN) (case no. 13-D-12, 28 May 2013, relating to concerted practices in the distribution of chemical commodities).

  • Werhahn Mühlen (case no. 12-D-09, 13 March 2012, relating to concerted practices in the flour industry).

  • Unilever (case no. 11-D-17, 8 December 2011, relating to concerted practices in the detergent industry). Unilever managed to obtain full immunity although its leniency application was made post-dawn raid (type 1B, see Question 4).

  • UPM Kymmene Wood (case no. 08-D-12, 21 May 2008, relating to concerted practices in the plywood production industry).

  • Allied Arthur Pierre et Maison Huet (case no. 07-D-48, 18 December 2007, relating to concerted practices in the national and international removal services sector).

  • France Portes (case no. 06-D-09, 11 April 2006, relating to concerted practices in the door manufacturing industry).

Partial immunity

To date, the FCA and the Competition Council have granted partial immunity to the following applicants in six cases:

  • Alloin/Kuehne+Nagel (30% reduction) (case no. 15-D-19, 15 December 2015, relating to concerted practices in the parcel delivery industry).

  • Senagral (35% reduction) (case no. 15-D-03, 11 March 2015, relating to concerted practices in the fresh dairy products industry).

  • Colgate-Palmolive (50% reduction for home care) and Henkel (25% reduction for home care and 30% reduction for body care) (case no. 14-D-19, 18 December 2014, relating to concerted practices in the home and body care products sector). In this case, Colgate-Palmolive obtained the highest reduction possible for a type 2 leniency (50%).

  • Brenntag (25% reduction) and Univar (20% reduction) (case no. 13-D-12, 28 May 2013, relating to concerted practices in the distribution of chemical commodities).

  • Henkel (25% reduction), Procter & Gamble (20% reduction) and Colgate-Palmolive (15% reduction) (case no. 11-D-17, 8 December 2011, relating to concerted practices in the detergent industry).

  • Descours & Cabaud (35% reduction) (case no. 08-D-32, 16 December 2008, relating to concerted practices in the steel products trading sector).

The number of leniency decisions issued so far (that is, 11) does not represent the full picture as several cases are still ongoing. According to the FCA's 2015 annual report, by the end of 2015 it had received 69 leniency applications since the introduction of the leniency programme in 2001.

 

Availability of leniency

Administrative liability

4. Is full immunity from administrative penalties available? What conditions must be met for immunity to be granted?

Full immunity from administrative fines is available. Two types of conditions must be fulfilled for full immunity to be granted:

  • Eligibility conditions.

  • Substantive conditions.

Eligibility conditions

There are two types of immunity that can be granted by the French Competition Authority (FCA):

  • Type 1A immunity. An application for type 1A immunity must be made before the FCA has:

    • gathered any information on the practices; or

    • carried out any dawn-raid.

  • Type 1B immunity. An application for type 1B immunity can be made when the FCA:

    • already has information on the alleged practices; or

    • has already carried out a dawn raid.

Type 1A immunity. An applicant for type 1A immunity must be the first to submit information and provide evidence of an infringement about which the FCA has no information and where both:

  • The FCA did not previously have sufficient evidence to enable it to carry out a dawn raid on its own initiative.

  • In the FCA's view, the evidence submitted by the applicant provides a sufficient basis to carry out a dawn raid. To this end, the applicant must, orally or in writing, provide at least:

    • all the information usually required for a leniency application which includes, among other things, a detailed description of the alleged practices, their duration, their geographic scope, and the companies concerned; and

    • any evidence (documentary, testimonial, and so on) in its possession or that can be made available to it at the time of the application.

Type 1B immunity. An application for type 1B immunity can be made where the FCA already has information on the alleged practices or has already carried out a dawn raid. The applicant may still qualify for full immunity if all of the following conditions are met:

  • The applicant is the first company to provide evidence that is sufficient to establish the existence of an infringement of French law or EU law on anti-competitive horizontal agreements.

  • At the time of the application, the FCA did not have sufficient evidence of the infringement.

  • No company has been conditionally granted type 1A immunity (see Question 10).

Type 1B immunity is almost impossible to obtain. After a dawn raid, the FCA can usually gather sufficient evidence to find an infringement of French law or EU law on anti-competitive horizontal agreements. To date, type 1B immunity has only been granted to:

Substantive conditions

An applicant who may be eligible for either type 1A or type 1B immunity must also meet certain substantive conditions to obtain full immunity. From the time it applies for immunity to the end of the proceedings the applicant must:

  • Immediately (at the latest as of the notification of the FCA's leniency opinion) end its involvement in the alleged anti-competitive practice (the FCA can, however, postpone this end date for reasons of confidentiality or for the efficacy of proceedings).

  • Provide full, genuine and continuous co-operation throughout the proceedings, and in particular:

    • promptly communicate all information or evidence regarding the alleged cartel;

    • promptly respond to any requests for information;

    • ensure the availability for interview of current and former employees and legal representatives;

    • abstain from destroying, falsifying or concealing any information in relation to the alleged cartel; and

    • unless otherwise agreed with the FCA, and up to issuance of the FCA's statement of objections, abstain from disclosing either that a leniency application has been made or its contents.

  • Not have destroyed or falsified evidence of the alleged cartel.

Full immunity will not be granted where the company concerned coerced another company to participate in the infringement.

 
5. Is there a sliding scale of available leniency from administrative penalties?

A sliding scale of fine reductions is available to applicants who are not eligible for full immunity. These are type 2 leniency applicants. Reduction ranges were set out for the first time in the French Competition Authority (FCA) 2015 Leniency Notice (3 April 2015, paragraph 21):

  • 25% to 50% (inclusive) reduction for the first company that provides significant added value.

  • 15% to 40% (inclusive) reduction for the second company that provides significant added value.

  • A maximum reduction of 25% for lower-ranking companies.

The tiers adopted by the FCA differ from EU law in two respects:

  • They are slightly broader than those available under EU law (between 30% and 50% for the first applicant, between 20% and 30% for the second applicant, and a maximum reduction of 20% for lower-ranking applicants) to give the FCA greater leeway in setting fines.

  • The French tiers overlap each other, so a company that arrives later in the procedure can potentially obtain a higher reduction of fine if its added value is more significant than that contributed by an earlier company.

Therefore, the sliding scale of leniency depends on:

  • The time when a leniency application was filed.

  • The sequence in which the evidence was submitted.

  • The extent to which the information submitted by the firm contributed significant added value to the case against the cartel members.

In addition to the substantive conditions set out for type 1 applications (see Question 4), the applicant must provide evidence of significant added value with regard to the elements already available to the FCA. Evidence of significant added value includes evidence that strengthens the FCA's ability to substantiate the existence of the alleged cartel because of both:

  • Its nature.

  • Level of detail.

When evaluating evidence, the FCA generally considers:

  • Written, contemporaneous evidence to have greater value than later evidence.

  • Direct evidence to have greater value than indirect evidence.

  • Compelling evidence to have greater value than evidence that requires corroboration.

Written contemporaneous evidence is important to a leniency application because it does not need to be corroborated by other elements (unlike mere oral statements). Written contemporaneous evidence can include:

  • Handwritten meeting notes.

  • Restaurant/hotel/taxi/parking bills.

  • Diary extracts.

  • Phone call records.

 
6. Is immunity or leniency for administrative penalties available to individuals? If so, what conditions apply?

Under French law, individuals cannot apply for leniency independent of the company itself. The company is the sole beneficiary of the leniency application.

 

Criminal liability

7. Is immunity or leniency available for companies and/or its employees in relation to criminal prosecution? What are the implications for employees when an undertaking has been granted immunity or leniency?

Criminal prosecution

Any person who fraudulently takes a personal and decisive part in the design, organisation or implementation of anti-competitive practices will be punished by a prison sentence of four years and a fine of EUR75,000 (Article L.420-6, French Commercial Code). As the French Competition Authority (FCA) cannot impose criminal sanctions, Article L.420-6 is enforced by the public prosecutor. If it suspects a violation of Article L.462-6, the FCA can refer any case to the public prosecutor.

Leniency from criminal proceedings

In its 2015 Leniency Notice (3 April 2015), the FCA stated that leniency is one of the legitimate reasons for not referring a case to the public prosecutor (paragraph 53). So neither the company nor its employees would be subject to criminal proceedings. In any case, Article L.420-6 is very rarely applied, except in cases of bid-rigging practices.

 

Application proceedings

8. When should an application for leniency be made?

Timing is essential when applying for leniency. The longer a company waits, the more likely it is that a competitor will apply for leniency before and will therefore be granted immunity or a higher fine reduction rate.

For example, in the home and body care case (case no. 14-D-19, 18 December 2014), an immunity application made by Procter & Gamble more than 2.5 years after the dawn raid was rejected for lack of added value compared with what the French Competition Authority (FCA) already had (Procter & Gamble was the fourth company to come forward on the home care practices (see Question 3). However, in theory, a leniency application can be made up to the notification of the statement of objections.

Most leniency applications are made before the dawn raids are carried out, because a company is more likely to be granted full immunity. Although it is still possible for a company to receive full immunity under type 1B (see Question 4), in practice, companies tend to submit even type 2 leniency applications within one or two months after the dawn raid.

Since 2015, the FCA has published a press release following dawn raids so that companies whose offices were not raided have equal access to the leniency tracking (paragraph 14, FCA Leniency Notice 3 April 2015).

 
9. What are the procedural rules for leniency applications?

Relevant authority

To make a leniency application, a company must contact the chief case handler (rapporteur général) of the French Competition Authority (FCA). The chief case handler may also respond to anonymous enquiries by applicants hoping to obtain guidance on the implementation of leniency proceedings (paragraphs 25 to 26, FCA 2015 Leniency Notice 3 April 2015).

Applicant

The company applies through a representative.

Informal/confidential guidance

For general advice on the leniency procedure, a company (or its legal adviser) can contact the leniency officer (paragraph 25, FCA 2015 Leniency Notice).

Form of application

A leniency application can be made (paragraph 28):

  • By registered signed-for mail.

  • Orally by appointment (oral statements are recorded electronically, and the date and time noted by the chief case handler in a written document).

Information/evidence

In its leniency application, the applicant must at least provide the following information (paragraph 29):

  • Name and address of the company concerned.

  • Circumstances that have led to the leniency application.

  • Names and contact details of the other cartel participants.

  • Product and territory on which the alleged cartel is likely to have an impact.

  • Nature and estimated duration of the alleged cartel.

  • Leniency applications filed or likely to be filed with other competition authorities in relation to the same cartel.

A template for leniency applications is available on the FCA's website (www.autoritedelaconcurrence.fr/doc/formulaire_clemence_generale.pdf).

Oral statements

A statement in support of a leniency application can be made orally (see Question 10, Stages of a leniency application: Submitting evidence in support of application).

Summary applications

Summary applications are accepted (see Question 10, Summary applications).

 
10. What are the applicable procedures and timetable?

The stages involved in a leniency application include:

  • Company applying for a marker.

  • Company submitting a leniency application. The French Competition Authority's (FCA's) chief case handler (rapporteur général) usually gives one month following the marker application to submit all the relevant documents/information/evidence to support the leniency application.

  • FCA's case handler report on the company's eligibility for leniency, which must be provided to the company at least three weeks before the scheduled leniency hearing.

  • Company's opportunity to reply to the FCA report.

  • Hearing on eligibility for leniency.

  • FCA adopting decision on eligibility for leniency (leniency opinion).

  • FCA final decision (after several other procedural milestones which are not specified here, but which are not specific to leniency).

In addition, summary applications are possible (see below, Summary applications).

Stages of a leniency application

Applying for a marker. It is possible for a company to apply for an initial marker before it makes a formal leniency application to the FCA and provides all the relevant documents, information and evidence related to the case. A similar system is operated by the European Commission.

Submitting a formal leniency application. An applicant initiates the leniency procedure by contacting the chief case handler (see Question 9). On receipt of an application, a number or rank is assigned to the applicant to guarantee that the order of application is maintained throughout the procedure, subject to the applicant's compliance with disclosure requirements and co-operation with procedure.

The FCA's chief case handler (rapporteur général) usually gives one month following the marker application to submit all the relevant documents/information/evidence to support the leniency application.

The level of fine reduction for the second and lower-ranking leniency applicants depends not only on the ranking of the application and the time when their evidence was submitted but also on the extent to which their evidence adds significant value. This will depend largely on whether the company can provide contemporaneous documents, which the FCA does not already hold (see Question 5).

Submitting evidence in support of the application. On registration of a leniency application, a written or oral statement is taken from the company's representative.

The chief case handler then sets a time limit within which the applicant must provide the FCA with all the information and evidence it considers necessary to support its leniency application. This time limit is usually one month.

Case handler report. On the basis of the evidence, the case handler will then:

  • Prepare a report on the:

    • applicant company's eligibility and compliance with substantive conditions for leniency;

    • FCA's proposals for full or partial immunity (if applicable).

  • Promptly inform the applicant whether its application constitutes a type 1A application or not.

The European Commission does not have a similar stage in its procedure.

Opportunity to reply. The case handler's report should be sent to the applicant at least three weeks before the hearing. At the same time it is sent to the Ministry of the Economy. The company concerned can then submit observations on this report. Again, the European Commission does not have a similar stage in its procedure.

Hearing on leniency. A non-public leniency hearing is held at which the company presents its application for leniency.

Preliminary decision on leniency (leniency opinion). Following the hearing, the FCA reaches a decision on leniency in which it:

  • Evaluates the quality of the leniency application.

  • Indicates whether it grants the applicant full or partial immunity from fines.

  • For partial immunity, states the level of fine reduction within a certain range.

Final decision. When reaching a final decision, the FCA will verify that all the conditions of its leniency opinion have been fulfilled. In particular, it will check that the company has continued to comply with its co-operation obligation throughout the entire investigation proceedings, following the leniency opinion.

Cases in which an applicant has not complied with its co-operation obligation include:

  • Deustche Bahn (case no. 15-D-19, 15 December 2015) (see Question 3, Full immunity).

  • Brenntag (case no. 13-D-12, 28 May 2013), where Brenntag did not obtain the maximum reduction it could achieve in its range as it had failed to comply with its co-operation obligation by calling into question its own statements. Brenntag obtained a 25% fine reduction, although the possible range was 15% to 35% (see Question 3, Partial immunity).

However, in the final decision a company can be granted a greater fine reduction than that given in the leniency opinion. In the home and body care products sector decision (case no. 14-D-19, 18 December 2014) Henkel was granted a higher fine reduction than had been set by the range in the leniency opinion (see Question 3, Partial immunity). Henkel obtained a 25% reduction when its range had been 10% to 20%. This increase in fine reduction was granted because Henkel had contributed new elements and complementary explanations of documents that had been provided within the framework of its leniency application, the added value of which had been underestimated at the time of the leniency opinion.

Summary applications

Mirroring the European Competition Network (ECN) Model Leniency Programme, the FCA 2015 Leniency Notice extends the possibility of summary applications to every leniency applicant, not just the first applicant (type 1A cases) as was the case under the previous notice (paragraph 43, FCA Leniency Notice 3 April 2015).

Summary applications are intended to allow any leniency applicant before the European Commission to file parallel (and shorter) applications before other relevant competition authorities. In principle, a summary application only contains:

  • A brief description of the alleged cartel.

  • The names of the companies concerned.

  • The relevant markets and products.

  • The duration of the alleged anti-competitive practice.

The summary applicant must bring to the attention of the FCA any information provided to the European Commission and likely to have an impact on its application (paragraph 46) (see Question 17).

 

Withdrawal of leniency

11. In what circumstances and at what stage of the proceedings can leniency be withdrawn? What implications does the withdrawal of leniency from one company have for other applicants?

At all stages of investigation proceedings a leniency applicant must:

  • Co-operate with the French Competition Authority (FCA).

  • Comply fully with the conditions and obligations imposed on it in the leniency opinion.

Failure to comply or co-operate at any stage can lead to the withdrawal or reduction of leniency.

For example, in the delivery sector decision (case no. 15-D-19, 15 December 2015), Deutsche Bahn, having been granted full immunity, was fined EUR3 million for not having informed the FCA that it had participated in an anti-competitive meeting after it made its leniency application and after the issuance of its leniency opinion.

There is no specific guidance on the effect of the withdrawal of leniency on another applicant. The authors are of the opinion that another applicant would not automatically take the place of the applicant that lost its immunity. In the above Deutsche Bahn case, Alloin, which was the second leniency applicant, kept its type 2 reduction in accordance with the leniency opinion, in which it was granted a reduction range of 20% to 30%.

A parallel can be drawn with the Commission's decision in the Italian Raw Tobacco case of 20 October 2005 (COMP/C.38.281/B.2) in which applicants who had applied for partial immunity were not upgraded in their fine reduction even though leniency was withdrawn from the full immunity applicant. Leniency applicant Deltafina had revealed to its main competitors that it had applied for leniency before the European Commission could carry out surprise inspections to find evidence against all presumed participants.

 

Scope of protection

12. What is the scope of leniency protection after it has been granted?

The leniency applicant is protected for the facts (including the period) it has revealed and for which a fine reduction range has been granted in the leniency opinion. There was an exception in the distribution of chemical commodities case (case no. 13-D-12, 28 May 2013), where Brenntag denounced a second type of anti-competitive practice after having received the leniency opinion, but without making another formal leniency application. Brenntag nevertheless obtained full immunity for this second anti-competitive practice, but the FCA considered that there were very specific circumstances (see Question 13).

 
13. Does the competition authority offer any further reduction in fines for an undertaking's activities in one market if it is the first to disclose restrictive agreements and practices in another market (leniency plus)?

There is no leniency plus in France, as no fine reduction is granted for practices carried out in a market that has not been denounced (even if the company has been granted conditional immunity in another market).

However, the French Competition Authority (FCA) 2015 Leniency Notice (3 April 2015) introduced a paragraph similar to that of the European Commission 2006 Leniency Notice (OJ C298/17, 8 December 2006). The FCA 2015 leniency notice now provides that if a company is the first to provide evidence to establish additional facts that directly impact the FCA's fine (for example, additional duration or markets), the FCA will not penalise the company on these additional facts when deciding the level of fine to impose on the company. This creates more certainty for type 2 leniency applicants in particular, as they can now provide additional facts that increase the scope of practices without risking an increased fine.

This was seen at EU level in the Power Cable case (AT.39610) dated 2 April 2014 where type 2 leniency applicants received immunity for the first two years of their cartel involvement, as they were the first to provide the European Commission with evidence of the cartel during that time. The European Commission was able to establish additional facts proving the existence of the cartel from 18 February 1999 to 1 March 2001 solely on the basis of evidence provided by JPS, Sumitomo, and Hitachi. As a result, in accordance with paragraph 26 of the European Commission's 2006 Leniency Notice, this period was not taken into account for JPS, Sumitomo and Hitachi for the purpose of determining their fines. For the remainder of their participation in the cartel, JPS, Sumitomo and Hitachi were granted a 45% reduction in their fines.

In France, the following decisions have been made, in which parallels with the Power Cable case can be drawn:

  • In the home and body care decision (case no. 14-D-19, 18 December 2014) Colgate-Palmolive obtained both full immunity for the practices established in the body care sector and partial immunity (50% reduction) for the practices established in the home care sector.

  • In the distribution of chemical commodities case (case no. 12-D-09, 13 March 2012) Brenntag obtained a 25% fine reduction for price co-ordination and customer allocation, and full immunity for anti-competitive practices towards one specific client, GKN.

  • In the fresh dairy products case (case no. 15-D-03, 11 March 2015) Senagral obtained a 35% fine reduction for practices related to fresh dairy products sold under private labels, but also obtained conditional full immunity for practices related to fresh cheese (although the latter practice was not ultimately included in the statement of objections).

Further fine reductions can be granted to leniency applicants who also settle with the FCA under the new settlement procedure introduced by Macron Law no. 2015-990 of 6 August 2015 (Article L.464-2-III, French Commercial Code). This settlement procedure replaces the former settlement procedure (non-contestation des griefs). To benefit from both leniency and settlement reductions there should be a procedural benefit for the FCA.

 
14. Does the grant of leniency affect a third party's ability to bring a follow-on damages action against a leniency applicant?

The French Competition Authority (FCA) 2015 Leniency Notice states that leniency applicants are not protected from civil law consequences related to the infringement of competition law (paragraph 52).

The FCA is not allowed to disclose information covered by investigative secrecy (Article L.463-6, French Commercial Code). All the information relating to a leniency application contained in the FCA's file must be kept confidential until the FCA's final decision on the merits. In any event, the FCA will never, on its own initiative, disclose to third parties, documents obtained during an investigation or proceedings.

In general, the FCA can produce to French courts any document in relation to anti-competitive practices that are the object of the proceedings before the court (Article L.462-3, French Commercial Code). However, there is an exception for documents drawn up in the context of or obtained through the leniency programme (Law no. 2012-1270, 20 November 2012). Therefore, although leniency applicants are not protected from follow-on private actions, there is some protection for them.

Finally, Directive 2014/104/EU on actions for damages under national law for infringements of competition law provisions of the member states and of the European Union provides that national courts should not be able to order the disclosure of corporate statements made in leniency applications (unlike certain other documents to which courts can gain access once the competition authority has issued its final decision). Hopefully, the future months and years will clarify the practical consequences of the Directive after it is implemented in French law (by 27 December 2016).

 

Confidentiality and disclosure

15. What are the rules relating to confidentiality during a leniency application?

Identity disclosure

Subject to the French Competition Authority's (FCA's) national and European obligations, the following will not be revealed to the other parties involved in the investigations until the statement of objections is issued:

  • The existence of a leniency application.

  • The identity of the leniency applicant.

The statement of objections is key in French procedure, as it gives access to the file to all the parties concerned.

The identity of the applicant and its co-operation with the FCA in the context of a leniency programme will not be made publicly available to third parties until the FCA's final decision is published on its website.

Information disclosure

Once the FCA issues its statement of objections, the other parties involved in the proceedings are granted access to the following that may have been provided by the leniency applicant:

  • Electronic recordings of oral statements.

  • Documentary evidence.

Confidentiality requests

A leniency applicant can ask the FCA to protect business secrets by redaction. However the FCA will only grant a request for confidentiality if:

  • It does not undermine the rights of the other parties to defend themselves.

  • The information is not crucial for establishing the infringement.

 
16. What are the rules concerning disclosure of statements made in support of a leniency application?

Statements made in support of a leniency application are made available to the other parties in an investigation after the FCA has issued its statement of objections (see Question 15).

Corporate statements filed during a leniency procedure are protected from disclosure to French courts (Law no. 2012-1270, 20 November 2012).

These rules are expected to change after the application of Directive 2014/104/EU on actions for damages under national law for infringements of competition law provisions of the member states and of the European Union (see Question 14).

 

Inter-agency co-operation

17. Does the regulatory authority in your jurisdiction co-operate with regulatory authorities from other jurisdictions in relation to leniency? If so, what is the legal basis for and extent of co-operation?

Since 1 May 2004 (under Regulation (EC) 1/2003 on the implementation of the rules on competition laid down in Articles 101 and 102 of the TFEU (formerly Articles 81 and 82 of the EC Treaty) (Modernisation Regulation)), the French Competition Authority (FCA) has been a member of the European Competition Network (ECN), within which EU competition authorities co-operate closely. Within the framework of the ECN, the FCA:

  • Accepts summary applications made under the ECN Model Leniency Programme (but see below).

  • Discloses to other competition authorities corporate statements made in the context of a leniency programme if both:

    • the receiving competition authority guarantees a degree of confidentiality equivalent to that guaranteed by the FCA; and

    • the conditions set out in the Modernisation Regulation on co-operation are met.

With regard to the ECN Model Leniency Programme, the European Court of Justice has recently highlighted:

  • The non-binding nature of the ECN's Model Leniency Programme for national competition authorities (NCAs).

  • That it is the company's own responsibility to make leniency applications to all relevant NCAs. It is also the company's responsibilities to ensure that these applications are sufficiently precise and complete, and that they update national applications as soon as the scope of the case changes.

The FCA is under no obligation to assess a summary application in light of an application made to the European Commission. Nor is it obliged to contact the European Commission or the applicant for further information. Therefore, in practice, a summary application does not provide complete legal certainty and predictability for a company, as recently demonstrated by the DHL case (DHL v Autorità Garante della Concorrenza e del Mercato (Case C-428/14) [2016], 20 January 2016).

The FCA is also part of the International Competition Network (ICN), which published guidelines on drafting and implementing an effective leniency policy as part of its anti-cartel enforcement manual.

As an OECD member, France participates in the OECD project for international co-operation in competition enforcement. This project seeks to minimise inconsistencies in leniency programmes of member countries that adversely affect co-operation.

 

Proposals for reform

18. Are there any proposals for reform?

The French Competition Authority's (FCA's) 2015 Leniency Notice has been introduced only relatively recently (3 April 2015).

There are no current reform proposals in relation to the French leniency programme.

 

Online resources

French Competition Authority's website

W www.autoritedelaconcurrence.fr

www.autoritedelaconcurrence.fr/user/standard.php?id_rub=79 (English)

Description. The website of the French Competition Authority (FCA) contains, among other information, annual reports, decisions, opinions and notices. An English-language version of annual reports' summaries, certain translated decisions, opinions and notices is available.



The regulatory authority

French Competition Authority (Autorité de la concurrence) (FCA)

Head. Bruno Lasserre (President)

Contact details. 11 rue de l'Echelle. 75001 Paris

T +33 1 55 04 00 00

W www.autoritedelaconcurrence.fr

Responsibilities. The FCA enforces French and European competition law by investigating and sanctioning anti-competitive agreements and practices and abuses of dominant positions, and reviewing mergers. It is also competent to issue opinions and launch sector inquiries.

Person/department to apply to. For general advice on the leniency procedure contact the leniency officer Anne Krenzer (E clemence@autoritedelaconcurrence.fr or T +33 1 55 04 00 00).



Contributor profiles

Anne Wachsmann, Partner

Linklaters LLP

T +33 1 56 43 57 00
E anne.wachsmann@linklaters.com
W www.linklaters.com

Professional qualifications. Lawyer, Paris Bar

Areas of practice. Merger control; EU and French litigation; EU and French anti-trust analysis.

Recent transactions/awards

  • Advising Sanofi on a high profile operation (EUR20 billion) consisting in a swap of Sanofi's animal health business, lodged with its subsidiary Merial, for Boehringer's consumer health care business. The case is currently being filed under merger control rules in a large number of countries in addition to the European Commission.

  • Representing several companies in relation to ongoing investigations before the European Commission and the French Competition Authority with leniency applications.

  • Represented Air France-KLM in the freight investigation launched in 2006 which led to a settlement in the US in 2008 and the European Commission decision of November 2010, heading an international multidisciplinary team of lawyers in charge of the case before the competition authorities in Europe, the USA, Asia and Africa, in addition to class actions. In December 2015, after five years, the EU General Court made an unprecedented move in annulling the European Commission's decision. This case was awarded the GCR Matter of the Year Award in April 2016.

  • Ranked as one of the top 100 women practitioners worldwide by GCR in 2009 and twice nominated as one of the "Top 40 competition lawyers under 40". She is now according to Legal 500 among the seven leading individuals in France for competition matters. In 2014, she won the Euromoney European Women in Business Law Award for Best Lawyer in Competition. The team she leads is ranked tier 1 in Chambers and Legal 500 since 2007 and also features in the Global Elite by GCR since 2013.

Publications. Concurrences. Co-writer of the quarterly column on abuse of dominant position.

Clara Robert-Heidmann, Managing Associate

Linklaters LLP

T +33 1 56 43 28 01
E clara.robert-heidmann@linklaters.com
W www.linklaters.com

Professional qualifications. Lawyer, Paris Bar

Areas of practice. Merger control; EU and French litigation; EU and French anti-trust analysis.

Non-professional qualifications. HEC business school (Programme Grande Ecole); University of Paris XI, Sceaux.

Recent transactions

  • Representing a company within the sector of home appliances and home entertainment products in relation to an ongoing investigation by the French Competition Authority (FCA) concerning resale price maintenance and restriction of online sales.

  • Representing several companies in relation to ongoing investigations before the European Commission and the FCA with leniency applications.

  • Representing a company within the automotive rental sector in relation to an ongoing investigation by the FCAconcerning alleged anti-competitive exchanges of information

  • Represented Peugeot and Gefco in relation to an investigation by the FCA concerning exchanges of information within the delivery sector, leading to the delivery services decision number 15-D-19 of 15 December 2015, where the FCA inflicted the second highest overall fines ever imposed in France against 20 logistics companies. This case is now in appeal.


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