The means of a proactive policy

Tomorrow is prepared for today... in particular by strategically prioritising cases and by an effective and proactive detection policy. In this regard, 2021 marks a turning point, with the adoption of new provisions strengthening the investigative powers of the Autorité and introducing the principle of "discretionary jurisdiction" into the statutory provisions. This new power will allow it to identify targets more effectively going forward, and enable the judicious allocation of its resources.

Enhanced investigative powers to meet today's challenges

In the area of investigations, the powers of the Autorité have been substantially enhanced with the so-called DDADUE law in 2020, and subsequently by the ordinance transposing the ECN+ directive in 2021. The DDADUE law, firstly, improved the procedures for detecting anticompetitive practices, by modernising the legal regime applicable to dawn raids: a single liberty and custody judge will now have national jurisdiction to authorise dawn raids taking place simultaneously in multiple places in the country, while the support of judicial police officers, who ensure the smooth conduct of these operations, will be rationalised (Law no. 2020-1508 of 3 December 2020).

The process of improving the effectiveness of its investigative powers subsequently continued with the publication of the ordinance transposing the ECN+ directive, which lays down the rules on access to digital data and the admissibility of evidence. In the context of their investigations, competition authorities are now faced with an exponential volume of digital data within companies, much of which is stored on remote servers or clouds. These new functional uses adopted by companies could entail a challenge for the organisation of dawn raids in terms of access to the storage locations and the fact that the seized data carriers are encrypted. With the aim of safeguarding the effectiveness of investigations and to ensure that procedures are secure, the new provisions eliminate these issues by providing for the possibility for agents from the Autorité de la concurrence and the DGCCRF to access, regardless of the storage location (computer cloud and servers), the information accessible to the persons and companies questioned (e-mails, instant messaging, etc.)

A policy of targeted dawn raids: for the interest and welfare of consumers

In the area of investigations, the Autorité targets strategic sectors for the smooth functioning of the economy, and investigates where the collective interest and the welfare of consumers are likely to be most jeopardised. In 2021, dawn raids were carried out in November in the mass food retail distribution sector, and in July in the pharmacy data collection and processing sector. The investigation services carried out these dawn raids, upon the following authorisation of a liberty and custody judge, at several companies and sometimes at the homes of some of their employees, to ascertain whether they had engaged in anticompetitive practices in the sectors concerned. At this stage, such interventions assume that the companies involved are innocent until proven guilty with regard to the alleged practices, which only a full investigation into the merits of the case can establish, as the case may be (Press Releases of 10 November 2021 and 9 July 2021).

In addition, the new provisions now place the Autorité’s procedures under the “freedom of evidence” standard applicable in criminal matters, which will broaden the scope of admissible evidence (Ordinance 2021-649 of 26 May 2021).

On this point, the directive stated that “National Competition Authorities should be able to consider relevant evidence, irrespective of whether it is written, oral, or in an electronic or recorded form. This should include the ability to consider covert recordings made by natural or legal persons which are not public authorities, provided those recordings are not the sole source of evidence [..]. Similarly, NCAs should be able to consider electronic messages as relevant evidence, irrespective of whether those messages appear to be unread or have been deleted” (Directive No. 2019/1 of the European Parliament and of the Council of 11 December 2018, Recital 73).

Discretionary prosecution: a new power for the Autorité

The Autorité and, on the front line, its investigation services are faced with increasingly complex cases. In order to carry out its missions with the same demanding level of efficiency, the time had come to invest in a new planning and prioritisation tool. Provided for in the Ordinance transposing the ECN+ Directive, the Autorité will now have the power to set its own priorities and reject complaints that do not correspond to these priorities.

This power, known as “discretionary jurisdiction”, will allow it to better allocate its resources, which can be fully devoted to the rapid resolution of the most important cases (Ordinance 2021-649 of 26 May 2021).

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