On 14 October 2011, the French Competition Authority launched a two-month public consultation on two new draft guidelines, namely a framework document on competition law compliance programmes and a procedural notice on the French settlement procedure.
Draft framework-document on competition law compliance programmes
The draft framework document on competition law compliance programmes first emphasises the added value for companies of having such a programme in place, provided that it is effective. According to this draft framework document, competition law compliance programmes play not only a preventive and educational role; but they can also be key in helping the company's board to detect anti-competitive practices and to deal with them. In this respect, the draft framework document specifies that companies having a compliance programme should submit as soon as possible a leniency application if their compliance programme reveals the existence of a cartel. The draft framework document further specifies that, if companies do not submit a leniency application or if the conditions to benefit from the leniency procedure are not met, the French Competition Authority will not consider the existence of a competition law compliance programme as a mitigating or aggravating factor, when determining the level of the fines.
Second, the draft framework document also explains how to make a competition law compliance programme effective. According to the draft framework document, in order to be effective, competition law compliance programmes must include in a single document the following five key elements:
- a firm, clear and public commitment by the entire board and management of the company to comply with competition law and to support the company's compliance programme;
- a commitment to empower someone, within the company or organisation, in charge of implementing and overseeing the compliance programme, with the necessary autonomy and means to fulfil this role;
- a commitment to implement effective information, training and awareness measures in order to spread and maintain a competition compliance culture at all levels, from the top management to each member of the staff of the company;
- a commitment to set up effective control, audit and warning mechanisms;
- a commitment to implement follow-up and disciplinary measures in the event of any detection of a violation of competition rules or of a breach of the company's compliance programme.
Finally, the draft framework-document specifies that, in case of an antitrust investigation, if companies do not challenge the charges notified to them and commit to set up a compliance programme with the above-mentioned components, or to improve an existing compliance programme, the French Competition Authority may grant a fine reduction of up to 10%.
Draft procedural notice on the French settlement procedure
The draft procedural notice on the settlement procedure formalises the French Competition Authority's practice developed over the last decade.
Based on this practice, the draft procedural notice first specifies the content of a settlement request, which may be submitted in all types of antitrust cases (cartels, other horizontal or vertical agreements as well as abuses of dominance). According to the draft procedural notice, such a request takes the form of a declaration whereby the company concerned specifies in clear, complete, unambiguous and unconditional terms that it does not challenge the existence of the anti-competitive practices, nor their legal qualification given by the investigating services of the French Competition Authority, nor the imputability of the practices. The draft procedural notice recalls that, in return for such a declaration, companies may be granted a fine reduction of 10%.
Second, the draft procedural notice specifies that companies that request a settlement can also commit to amend their behaviour in the future in a variety of ways, in return for an additional reduction between 5% and 15%. In this respect, the draft procedural notice recalls that companies may commit to set up a compliance programme, which may result in a fine reduction of up to 10% (see above).
Finally, the draft procedural notice explains the different steps of the settlement procedure. In particular, it explains that companies must request a settlement as soon as possible, within two months from the date of receipt of the Statement of Objections, and that the General Rapporteur of the French Competition Authority is not obliged to grant such a request.
Interested parties have until 14 December 2011 to submit their comments on these two draft documents. This will be followed by a public roundtable held by the French Competition Authority on 20 December 2011. Both documents are expected to be released in their final form in February 2012.
Paris Court of Appeal clarifies the scope of seizure of electronic mailboxes
On 4 October 2011, the Paris Court of Appeal delivered a ruling on data-collection methods during dawn raids. The question at issue involved the French Competition Authority's methods in seizing electronic documents. The practice of the French Competition Authority during dawn raids is to seize entire electronic mailboxes without filtering their content for confidential/privileged information. In the case at hand, the applicant contested the legality of such a seizure in so far as it was too extensive and contained data unrelated to the investigation. The Paris Court of Appeal however ruled that "based on the current IT-techniques and in the light of the peculiarity of professional electronic mailboxes, the [French Competition] Authority can seize them as a whole". The French competition watchdog is thus entitled to extract entire electronic mailboxes without filtering their content for confidential or privileged information.
It should however be mentioned that, following a request of the Paris Court of Appeal in another case, experts have examined this matter and have concluded that, contrary to the above-mentioned ruling, software exists on the market that would allow officials to narrow down their searches in email accounts and sift out protected messages. Forthcoming developments in order to reconcile the above ruling and the experts' report are therefore expected in relation to data-collection methods during dawn raids.
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