On 17 January 2011, the French Competition Authority (the 'Authority') published draft guidelines for setting antitrust fines.
These are intended to increase the transparency and predictability of antitrust fines and to allow a balance to be struck between their deterrent effect and their proportionality to the infringement they sanction.
In practice, the Authority shall set a basic amount varying between 0 and 30% of the value of the sales generated by the undertaking's infringement. The variation will depend on the gravity of the infringement and the economic harm the infringement causes.
The Authority will then modify this amount taking into account (i) the individual behaviour of the undertaking, (for example, the amount will decrease if the undertaking was forced to infringe antitrust rules and increase if it played a leading role) and (ii) the objective situation of the undertaking, such as its size, the fact that it operates only on one market, or that it belongs to a group. The aggravating factor of recidivism will then be examined separately.
The Authority may finally decrease the fine on the basis of its leniency program or settlement procedure. It will then check to ensure the fine does not exceed a statutory cap. It may then assess whether the undertaking would have financial difficulties in paying the fine, if such a claim is made by the undertaking.
The draft guidelines do not cover the issue of compliance programs or settlement procedures, which will be subject to specific guidelines. This draft will be open to public consultation until 11 March 2011. A roundtable will then be held on 30 March 2011, before the publication of the final document.
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