The French Competition Authority (FCA) is currently considering a further revision of the 2001 French leniency program, which has already been the subject of two procedural notices in 2006 and 2009. The FCA sought the opinions of competition law practitioners and companies to determine whether areas of the program could be improved. The responses to the study contained some strong criticism, but also some surprises.
The bulk of negative opinions centered on the amount of "red tape," the overall legal uncertainty of the outcome of the leniency application, and the excessive length of the procedure. Nevertheless, a substantial 67 percent of respondent practitioners considered that the French leniency program was satisfactory compared to the programs of other national competition authorities (NCA). As far as respondent companies were concerned, it was the uncertainty in obtaining a satisfactory reduction of fines and, again, the cumbersome procedure before the FCA that constituted the main obstacles to the program's efficiency. A surprising outcome came in the ranking of reasons that lead a company to petition for leniency: a reduction of fine, perhaps unsurprisingly, ranked first, followed by the existence of a prior leniency claim before another NCA. However, the threat of on-site inspections or "dawn raids" ("operations de visite et saisies") by both investigators from the FCA and/or police ranked third.
Competition law practitioners, on the other hand, emphasized the size of the company as well as companies' multinational reach as being strong incentives when considering petitioning for leniency, but also stressed the importance of in-house legal departments being fully aware of the intricacies of the FCA and its leniency program.
Finally, the responses to the inquiry showed a great concern from both companies and practitioners regarding two aspects: (1) the increased risk of subsequent civil actions, especially following the introduction of competition-based class actions introduced by a recent law; and (2) the lack of transparency in FCA inspections.
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