38 THE ECN+ DIRECTIVE MARKS THE NEXT STEP IN THE MODERNISATION … OF THE AUTORITÉ AND STRENGTHENING OF POWERS WITH THE STRENGTHENING THE TRANSPOSITION OF THE ECN+ DIRECTIVE The new powers conferred OF ITS POWERS. on the Autorité by the Directive Adopted in 2019, European Directive n° 2019/1, known as "ECN+” (European Competition Network) has allowed in the practices that are the most har- As regards leniency, the Directive will major advances to strengthen compe- mful to the economy. The Autorité has facilitate a significant step forward, with tition policy. This directive enlarges the already had the opportunity to test the full harmonisation of NCA leniency pro- resources available to national competi- effectiveness of this tool in the mass grammes for the most serious ’secret tion authorities and provides for the crea-retail distribution sector, as the Egalim cartel’ infringements. The leniency pro- tion of a "common set of powers" enabling Law now gives it the possibility of startingvisions of the Directive will be in line with them to enforce competition rules more proceedings on its own initiative in the the "Model Leniency Programme" adop- effectively within the European Union. All case of mergers between large purcha- ted by the ECN in 2006. competition authorities will now have the sing offices (Formore information on this same powers at European level, ensuring subject, seep.73). This new possibility, The transposition also includes provi- a more effective enforcement of anticom- which will now be extended to all sectors, sions on the Autorité’s investigatory petitive practices. may prove particularly valuable in the powers in relation to access to digital digital sector, given the difficult-to-over-data and the admissibility of evidence. In France, the publication of Act 2020- turn effects of certain practices on highly 1508 of 3 December 2020 on various evolving markets (see our report on digi- provisions for adapting economic and tal issues, p.26). financial legislation to European Union law (the DDADUE Law), which allows the The transposition will also mark an impor- ECN+ Directive to be transposed by ordi- tant step in theEuropean harmonisation nance, marks the next step in the moder- of penalties and will result in the concept nisation of the Autorité and its powers. of damage to the economy being taken out of the equation when the penalties The power at the Autorité’s disposal to imposed by the Autorité are calculated. implement interim measures on its own The applicable regime will therefore be A MODERNISED initiative will be particularly useful, to in line with the regime in force at Euro- FRAMEWORK allow it to intervene even more rapidly pean level. FOR ACTION • Introduction of the principle of discretionary prosecution, which will enable the Autorité to better deal with the cases that raise the most serious competition issues • Power to issue structural injunctions in the context of the fight against anticompetitive practices • A substantial increase in the cap on fines for professionalbodies up to 10% of total worldwide turnover(ending the previous cap of €3 million) • Possibility for the Autorité to issue interim measures on its own initiative