France: French Competition Authority Publishes Guidelines On Settlements In Antitrust Proceedings

Last Updated: 17 May 2012
Article by Sergio Sorinas, Estelle Jegou and Christine Jorns

On 10 February 2012, the French Competition Authority (FCA) published a procedural notice concerning the settlement procedure (the Notice). The Notice aims at setting out the approach followed by the FCA regarding the settlement procedure in order to enhance transparency for the benefit of companies.

The settlement procedure, contained in article L.464-2, III of the Commercial Code, enables companies subject to infringement proceedings to waive their right to challenge the charges notified by the FCA in exchange for a fine reduction between 10 and 25%.

1. Scope and conditions

  • Scope of the settlement procedure and eligibility conditions
    • The settlement procedure is available to companies which are subject to proceedings before the FCA for infringements of competition law, in particular anticompetitive agreements and abuses of a dominant position.
    • In order to benefit from the settlement procedure the company must waive its right to challenge (i) the entirety of the practices in question, (ii) the legal assessment of these facts, and (iii) their imputability. In addition, the company must not challenge the procedure having led to the notification of the Statement of Objections, nor the FCA's jurisdiction.
  • Combination with leniency
    • The combined application of the settlement and leniency procedures (and thus a double fine reduction) is possible if the FCA considers that this would simplify and speed up the proceedings.
  • Structural or behavioural commitments at the option of the company
    • A company deciding not to challenge the Statement of Objections may at the same time propose structural or behavioural commitments which can lead to a further reduction of the fine.
    • The company can, in particular, propose setting up or improving a competition law compliance programme and thus benefit from a specific fine reduction of up to 10%. The FCA's approach to competition law compliance programmes is set out in a dedicated framework document (see the separate e-bulletin "The French Competition Authority publishes best practices on competition law compliance programmes").

2. Impact of settlement on other parties to the proceedings

  • The chief investigator (rapporteur général) of the FCA can, within the deadline for responding to the Statement of Objections, inform the other parties to the proceedings of the settlement application in order to allow them to decide whether they also wish to enter into a settlement procedure. Otherwise, all parties are notified of the settlement application at least three weeks prior to the hearing before the College.
  • A settlement produces legal effects for the other parties to the proceedings which have chosen not to settle their case. Thus, a settlement eases the burden of proof on the Authority vis-à-vis the parties disputing the Statement of Objections: the FCA only needs to prove their participation in the infringement, not however the practices themselves or their legal assessment which are deemed established.

3. Fine reduction for settlement

  • The settlement of a case is per se rewarded by a fine reduction of 10%
    • Companies choosing only not to contest the objections benefit in principle from a fixed fine reduction of 10%.
    • In addition, the maximum amount of the fine is reduced to half of the normally applicable amount (5% of worldwide consolidated turnover rather than 10%).
  • Commitments are rewarded by an additional fine reduction of up to 15%
    • Putting in place or improving a competition law compliance programme can be rewarded by an additional fine reduction of up to 10%
    • Also, by taking further structural or behavioural commitments, the company can benefit from an additional fine reduction of up to 5%.
    • As a result, companies which opt for a settlement and present commitments can qualify for a fine reduction of up to 25%.

4. The settlement procedure

  • The application for settlement
    • A company wishing to opt for a settlement must submit a settlement application to the chief investigator of the FCA within the two months deadline for responding to the Statement of Objections.
    • The chief investigator is not obliged to accept this request. A decision is taken on a case-by-case basis, taking into account the context, the simplification and speeding up of the proceedings due to the settlement.
  • Proposal of fine reduction by the chief investigator
    • If the chief investigator deems the conditions for a settlement met and agrees to the proposed commitments, he will notify the company in question of his intention to propose a fine reduction to the college of the FCA.
    • The agreement between the company and the chief investigator is recorded in minutes containing (i) the company's waiver of the right to contest the Statement of Objections, (ii) if applicable, the commitments taken by the company, and (iii) the proposal with the fine reduction which the investigator intends to submit to the college of the Authority.
  • Decision by the college of the Authority
    • The college is not bound by the fine reduction proposed by the chief investigator. Nonetheless, it commits itself to referring the case back to the case-team if it envisages departing from his proposal to the disadvantage of the company.
    • The college of the Authority verifies that the chief investigator applied the settlement procedure correctly and made no errors in its assessment of the proposed commitments.

For companies and their advisers, the Notice certainly constitutes a progress, enhancing the predictability of the settlement procedure and in particular the percentage of the fine reduction. The possible combination with the leniency procedure in line with EU law is also to be welcomed. The predictability of the fine remains, however, insufficient; it is particularly regrettable that the Notice does not envisage the possibility for the chief investigator to propose a maximum amount of the fine or a range of the fine in absolute terms.

In addition, preventing the company applying for settlement from contesting the validity of the proceedings or the FCA's jurisdiction seems questionable from a legal point of view given that these aspects are unrelated to the substance of the case. Finally, not being able to challenge the imputability of the practices may diminish the procedure's appeal for groups of companies. This will particularly be the case in situations where the parent company is being pursued for infringements committed by a subsidiary due to the presumption based on ownership of the share capital and without any direct involvement of the parent company in the practices in question.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions