Responsiveness and vigilance: many tools available to the Autorité

Although the general public is most familiar with the Autorité's fining decisions, it actually has a very diverse range of intervention methods at its disposal to deal with all situations. This sometimes involves intervening upstream in markets and positions that are evolving very quickly, by making full use of the tool of interim measures. It may also be a question of ensuring the smooth progress of the investigation or the proper implementation of the issued decisions. A look back at an eventful year, which illustrates the effectiveness of these tools.

Interim measures, a valuable tool

In the event of a situation requiring rapid intervention, and if there is serious and immediate harm to competition, the Autorité may be required to issue interim measures pending a decision on the merits of the case. While up until now, the Autorité had to be referred to by a complainant, the Autorité can now impose urgent interim measures on its own initiative, since the transposition of the European directive known as ECN+ (Ordinance no. 2021-649 of 26 May 2021).

By imposing interim measures, the Autorité can therefore prevent, during the investigation into the merits of the case, a potentially anticompetitive practice from seriously and irreparably harming the interests of an economic sector or the company that is the victim. This decision is made, if necessary, in a very short time, within a few months. In the case involving the rejection of the request for interim measures concerning Apple’s implementation of the ATT prompt (Decision 21-D-07 of 17 March 2021, for more details on this decision, see p. 54), the Autorité rapidly intervened, even before the implementation of Apple’s new iOS. It was a similar situation for the interim measures ordered in the context of  related rights, since the decision was made in April 2020 (Decision 20-MC-01 of 9 April 2020), barely nine months after the entry into force of the law on related rights and the implementation of Google’s practices that were disputed by press publishers and news agencies. A pioneer in this area, the Autorité regularly uses this powerful tool to achieve a high level of responsiveness and has taken 114 decisions in 12 years.

Ensuring the smooth progression of the investigation: three cases involving obstruction in 2021...

The provisions on obstruction are crucial in ensuring the effectiveness of the Autorité’s investigative and fact-finding powers. The company under investigation is therefore subject to an obligation of active and good-faith cooperation, which implies in particular that it responds to requests for information sent by the Autorité and that it does not obstruct the smooth conduct of the investigation, for example by breaking seals, failing to respond or providing incorrect or incomplete information, or by interfering with emails during visits and dawn raids. If this is not the case, the company may face penalties that can be substantial.

In July 2021, the Autorité imposed a fine of €5,000 on Nixon, a company active in the watch sector, for failing, over a 5-month period, to respond to a request for information sent in the framework of assistance to the Greek competition authority.

While this company argued it had undergone restructuring measures, this situation alone can in no event justify a complete failure to respond (Decision 21-D-16 of 9 July 2021).

Furthermore, in December 2021, the Autorité also fined Mayotte Channel Gateway (MCG), which manages and operates the port of Longoni in Mayotte, and its parent company (Société Nel Import Export) in the amount of €100,000 for a similar behaviour, which involved failing to respond to requests for information from the investigation services. The latter had sent a questionnaire to MCG and despite several reminders, two extensions of the deadline for responses and a double reminder of the penalties incurred in the event of failure to respond, the companies had not provided the Autorité with any response whatsoever, ten months after the questionnaire was sent (Decision 21-D-28 of 9 December 2021).

Finally, in May 2021, the Autorité fined the Fleury Michon group €100,000 for obstructing the investigation in the cold meats cartel case, which had resulted in a fine of €93 million being handed out in July 2020. During the investigation, it was revealed that the group had not informed the investigation services of the change in its corporate structure, even though an internal restructuring operation had led to the delisting of Fleury Michon Charcuterie. The Fleury Michon group not only failed to report this transaction to the investigation services, but also actively misled them after the statement of objections was sent, with its lawyers filing documents in the name and on behalf of Fleury Michon Charcuterie, even though the company no longer existed. Finally, the Fleury Michon group attempted to further profit from its own misconduct by arguing, during the proceedings that resulted in the decision fining the cartel, that Fleury Michon LS (the company having absorbed Fleury Michon Charcuterie) should be exonerated from the case because it had not personally received the statement of objections (Decision 21-D-10 of 3 May 2021).

Periodic penalty payments in the event of non-compliance with injunctions

The Autorité may order a party committing anticompetitive practices to take or desist from a given action. The aim is precisely, through injunctions either to cease a given action or to modify the party’s conduct in the future, to restore competitive functioning. In the event of non-compliance with an injunction issued, the Autorité has the option of imposing a fine. Indeed, it was led to take this course of action in July 2021, by fining Google €500 million for having disregarded various injunctions imposed in the context of its decision relating to the remuneration of related rights. While the Autorité may impose a fine of up to 10% of worldwide sales excluding taxes when it fines anticompetitive practices, it also has the option of imposing periodic penalty payments of up to 5% of total average daily sales for each day’s delay from the date it sets, to compel the parties concerned to comply with the injunctions. To ensure the effective enforcement of its injunctions in the related rights case, the Autorité used this tool by imposing a penalty of €300,000 per day’s delay at the end of a two-month period starting from the formal request to reopen negotiations made by each of the complainants (Decision 21-D-17 of 12 July 2021 on compliance with the injunctions issued against Google in decision 20-MC-01 of 9 April 2020, for more details on this decision see p. 49).

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