France: French Competition Authority Publishes New Guidelines On Compliance Programmes And Settlement Procedures

On 10 February 2012, the French Competition Authority published the final version of (i) a framework-document on competition law compliance programmes and (ii) a procedural notice on the French settlement procedure. This publication follows a public consultation launched by the French Competition Authority on both draft documents at the end of 2011 (see VBB on Competition Law, Volume 2011, No. 10). On 20 December 2011, the French Competition Authority held a public roundtable discussion to continue the consultation. While remaining faithful to its initial position on a number of points, the French Competition Authority made some important additions to the final text of both documents.

Framework-document on competition law compliance programmes

The framework-document on competition law compliance programmes explains the requirements that such programmes should meet in order to be considered effective. It also explains how the French Competition Authority will take these programmes into account when dealing with individual cases of anticompetitive agreements or abuses of dominance.

Although there is no "one size fits all" compliance programme, the French Competition Authority considers that the five following key elements should be combined in order to ensure the programme's effectiveness:

  • the existence of a clear, firm and public position adopted by the company's management bodies and, more broadly, by all managers and corporate officers (i) stressing that compliance with the competition rules is not only a legal obligation, but also a key feature of the company's corporate liability, and (ii) including a general and permanent commitment to comply with competition rules and to support the company's compliance programme;
  • a commitment to appoint one or more persons empowered, within the company, to develop and monitor all aspects of the compliance programme;
  • a commitment to put in place effective information, training and awareness measures;
  • a commitment to set up effective control, audit and whistle-blowing systems; and
  • a commitment to set up an effective monitoring system, including a procedure for handling requests for advice, reviewing reports of infringements and studying subsequent action to be taken.

Nonetheless, the framework-document stresses that the fact that a company is a small or medium-sized enterprise (SME) may allow several features of its compliance programme to be significantly adapted.

The framework-document specifies that, if a competition law compliance programme allows a company to unveil the existence of a cartel, the latter should not only put an end to the infringement but also submit a leniency application. The framework-document however further clarifies that if a company fails to submit a leniency application, it may still decide not to challenge the objections notified to it under the French settlement procedure (see below). In this respect, the framework-document recalls that a company can benefit from a reduction in the fine of up to 10% under the settlement procedure if it commits itself to set up a compliance programme or improve an existing programme by implementing the above-mentioned key elements.

Finally, the framework-document incorporates an innovation by considering that if, further to the implementation of an effective compliance programme, a company discovers on its own initiative an anticompetitive practice other than a cartel (and thus not covered by the French leniency programme) and puts an end to it before the initiation of any investigation by a competition authority, the French Competition Authority may take this factor into consideration as a mitigating circumstance when determining the level of the fine.

Procedural notice on the French settlement procedure

The procedural notice on the settlement procedure explains how this procedure is implemented and formalizes the French Competition Authority's practice, while specifying the practical aspects of the procedure on a number of points.

The procedural notice recalls that the settlement procedure, if considered appropriate by the French Competition Authority's General Rapporteur in a given case, enables companies to benefit from a reduction in the fine of 10% if they accept not to challenge the objections notified by the French Competition Authority. The procedural notice further recalls that companies may also commit to amend their future behaviour in return for an additional reduction between 5% and 15%. According to the procedural notice, these commitments may be either structural, behavioural (e.g., modifications to contractual clauses, general terms of sales and price scales) or take the form of compliance programmes (see above).

Turning to the various steps of the settlement procedure, the procedural notice recalls that companies must submit a request for a settlement to the General Rapporteur of the French Competition Authority as soon as possible and at the latest within two months of the date of receipt of the Statement of Objections. Compared to the initial draft, the procedural notice now specifies that preliminary contacts may take place before the Statement of Objections is sent.

Finally, another major addition to the final version of the procedural notice is that companies are given the opportunity – if the General Rapporteur deems it appropriate – to combine the benefits of both the leniency regime and the settlement procedure. According to the procedural notice, this may apply, in particular, if the objections notified to the company differ on one or more significant aspects from the content of its leniency application.

Both guidelines on compliance programmes and settlement procedures specify that they are binding on the French Competition Authority but allow the latter to depart from them, by virtue of specific circumstances or reasons of general interests in a given case, on the condition that the French Competition Authority provides adequate reasoning in its decision.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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