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
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
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