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Order No. 2004 - 1173 Of 4 November 2004 Adapting Certain Provisions Of The Commercial Code To Community Competition Law

Original Language Title: Ordonnance n° 2004-1173 du 4 novembre 2004 portant adaptation de certaines dispositions du code de commerce au droit communautaire de la concurrence

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Summary

This Order and pursuant to Article 2 of Act No. 2004-237 of 18 March 2004 empowering the Government to transpose by order Community directives and to implement certain provisions of Community law. It aims to adapt national rules to the new legal regime derived from Council Regulation (EC) No. 1/2003. It contains fifteen articles.MODIFICATION TRADE CODE: Articles L. 420-7, L. 450-1, L. 450-4, L. 462-3, L. 462-6, L. 462-7, L. 462- 8, L. 462-9, L. 463-1, L. 463-2, L. 463-4, L. 464-2, L. 464-3, L. 464-4, L.

Keywords

ASSISTANCE, ASSISTANCE, ASSISTANCE, ASSISTANCE, ASSISTANCE

Legislative records




JORF n°258 of 5 November 2004 page 18689
text No. 2



Order No. 2004-1173 of 4 November 2004 adapting certain provisions of the Code of Commerce to Community competition law

NOR: ECOX0400181R ELI: https://www.legifrance.gouv.fr/eli/ordre/2004/11/4/ECOX0400181R/jo/texte
Alias: https://www.legifrance.gouv.fr/eli/ordre/2004/11/4/2004-1173/jo/texte


President of the Republic,
On the report of the Prime Minister, the Minister of State, Minister of Economy, Finance and Industry, and the Seal Guard, Minister of Justice,
Having regard to the Constitution, including article 38;
Considering the Treaty establishing the European Community, including articles 81 to 83;
Having regard to Council Regulation No. 1/2003 (EC) of 16 December 2002 on the implementation of the competition rules provided for in Articles 81 and 82 of the Treaty establishing the European Community;
Considering the trade code;
Considering the Code of Criminal Procedure;
In view of Act No. 2004-237 of 18 March 2004 empowering the Government to transpose by order Community directives and to implement certain provisions of Community law, including article 2 of the Act;
The Council of State heard;
The Council of Ministers heard,
Order:

Article 1 Learn more about this article...


Section L. 420-7 of the Commercial Code is replaced by the following provisions:
"Art. L. 420-7. - Without prejudice to articles L. 420-6, L. 462-8, L. 463-1 to L. 463-4, L. 463-6, L. 463-7 and L. 464-1 to L. 464-8, disputes relating to the application of the rules contained in articles L. 420-1 to L. 420-5 as well as in articles 81 and 82 of the treaty establishing the European Community and those in which these provisions This decree also determines the seat and jurisdiction of the court(s) called for to know decisions rendered by these courts. »

Article 2 Learn more about this article...


After the second paragraph of Article L. 450-1 of the same code, it is inserted a paragraph as follows:
"In the event that investigations are carried out on behalf of or on behalf of a competition authority of another Member State, pursuant to Article 22(1) of Council Regulation No. 1/2003 on the implementation of the competition rules provided for in Articles 81 and 82 of the Treaty establishing the European Community, the Minister responsible for the Economy may authorize agents of that competition authority to assist the competent officials mentioned in the first paragraph or the rapporteurs mentioned in the first paragraph. The modalities of this assistance are set by decree in the Council of State. »

Article 3 Learn more about this article...


Article L. 450-4 of the same code is amended as follows:
1° The first sentence of the first paragraph is replaced by the following sentence: "Inquiries may not carry out visits to all places, as well as the seizure of documents and information only in the course of investigations requested by the European Commission, the Minister for Economic Affairs or the General Rapporteur of the Conseil de la concurrence on the proposal of the rapporteur, on judicial authorization given by order of the judge of liberties and the detention of the court of large instance in which to visit are located. They may also, under the same conditions, apply seals on all commercial premises, documents and information materials within the time limit of the visit of these premises. » ;
2° The second sentence of the third paragraph is replaced by the following sentence: "He designates one or more judicial police officers to assist in these operations and to assist in the necessary requisitions, as appropriate, and to keep him informed of their conduct. » ;
3° The eighth preambular paragraph shall be replaced by the following:
"The investigators, the occupant of the premises or his representative as well as the judicial police officer and, if necessary, the officers and other persons appointed by the European Commission may only take note of the documents and documents before their seizure. »

Article 4 Learn more about this article...


In article L. 462-3 of the same code, after the words: "L. 420-1, L. 420-2 and L. 420-5", the words "as well as articles 81 and 82 of the Treaty establishing the European Community".

Article 5 Learn more about this article...


It is added to article L. 462-6 of the same code a paragraph as follows:
"The statute of limitations is also interrupted when the facts referred to in the case are the subject of an act for their research, recognition or sanction by the European Commission or by a competition authority of another Member State of the European Community. »

Article 6 Learn more about this article...


In article L. 462-7 of the same code, the words "three years" are replaced by the words "five years".

Article 7 Learn more about this article...


Article L. 462-8 of the same code is amended as follows:
1° After the second subparagraph, three subparagraphs are inserted:
"It may also reject the referral under the same conditions, when it is informed that another national competition authority of a Member State of the European Community or the European Commission has dealt with the same facts under the provisions of Articles 81 and 82 of the Treaty establishing the European Community.
"It may also reject the referral under the same conditions or suspend the proceedings, when it is informed that another national competition authority of a Member State of the European Community deals with the same facts under the provisions of Articles 81 and 82 of the Treaty establishing the European Community. When this information is received by the rapporteur at the stage of the instruction, the rapporteur general may suspend the proceedings.
"The Conseil de la concurrence may also decide to close in the same conditions a case for which it had before it on its own motion. » ;
2° In the last paragraph, the words are added: "Parties or divestitures by the European Commission".

Article 8 Learn more about this article...


Article L. 462-9 of the same code creates an I comprising the first six sub-paragraphs and a II as follows:
“II. - In the implementation of the competition rules provided for in Articles 81 and 82 of the Treaty establishing the European Community, the competition authorities shall apply the provisions of Council Regulation No. 1/2003 on the implementation of the competition rules provided for in Articles 81 and 82 of the Treaty establishing the European Community, excluding the provisions of the first five paragraphs of I of this Article.
"For the purposes of the provisions of Article 11(4) of this Regulation, the Conseil de la concurrence shall transmit to the European Commission a summary of the case and a document outlining the direction envisaged, which may be the notification of grievances or the report referred to in Article L. 463-2. It may make these same documents available to other competition authorities of the Member States of the European Community. »

Article 9 Learn more about this article...


I. - In Article L. 463-1 of the same code, the words "subject to the provisions of Article L. 463-4".
II. - In the first paragraph of Article L. 463-2 of the same code, after the words: "view the file" are inserted the words: "subject to the provisions of Article L. 463-4".
III. - Section L. 463-4 of the same code is replaced by the following provisions:
"Art. L. 463-4. - Except in cases where the communication or consultation of these documents is necessary for the procedure or exercise of their rights by the party(s) involved, the President of the Competition Council, or a Vice-President delegated by him, may refuse the communication or consultation of any parts or elements contained in such documents involving the confidentiality of cases. The documents considered are removed from the file or some of their mentions are hidden.
"In cases where the communication or consultation of these documents, although involving the secrecy of cases, is necessary for the procedure or exercise of the rights of one or more of the parties, they are provided in a confidential annex to the record and are communicated only to the Commissioner of the Government and to the party(s) involved for which these documents or elements are necessary for the exercise of their rights.
"A decree in the Council of State specifies as necessary the conditions for the application of this article. »

Article 10 Learn more about this article...


Article L. 464-2 of the same code is amended as follows:
1° In the first paragraph of the I are added the words: "It can also accept commitments proposed by companies or organizations and in such a way as to put an end to anti-competitive practices";
2° In the second paragraph, the words are added: "in case of non-compliance with the commitments it has accepted";
3° After I, a new II is inserted as follows:
“II. - The Conseil de la concurrence may impose on the interested parties a limit of 5% of the average daily turnover, per day of delay from the date it sets, to compel them:
“(a) Implementing a decision that forced them to end anti-competitive practices, to execute a decision that imposed specific conditions or to comply with a decision that made a mandatory undertaking under I;
“(b) Compliance with the measures imposed pursuant to Article L. 464-1.
"The turnover taken into account is calculated on the basis of the company's accounts for the last fiscal year ended on the date of the decision. The term is liquidated by the Conseil de la concurrence, which sets the final amount. » ;
4° The II and III become the III and IV respectively.

Article 11 Learn more about this article...


Section L. 464-3 of the same code is replaced by the following provisions:
"Art. L. 464-3. - If the measures, orders or commitments set out in sections L. 464-1 and L. 464-2 are not complied with, the board may impose a monetary penalty within the limits set out in section L. 464-2. »

Article 12 Learn more about this article...


In article L. 464-4 of the same code, after the words: "Pecutive sanctions" are inserted the words: "and the offences".

Article 13 Learn more about this article...


After the first sentence of the second paragraph of Article L. 464-8 of the same code, the following sentence is inserted: "Decisions may provide for a limited publication to take into account the legitimate interest of the parties to ensure that their business secrets are not disclosed. »

Article 14 Learn more about this article...


At the end of the first sentence of Article L. 470-6 of the same Code are added the words: "and by Council Regulation No. 1/2003 (EC) of 16 December 2002 on the implementation of the competition rules provided for in Articles 81 and 82 of the Treaty establishing the European Community".

Article 15


The Prime Minister, the Minister of State, Minister of Economy, Finance and Industry, and the Minister of Justice of the Seals, are responsible for the application of this Order, which will be published in the Official Journal of the French Republic.


Done in Paris, November 4, 2004.


Jacques Chirac


By the President of the Republic:


The Prime Minister,

Jean-Pierre Raffarin

Minister of State, Minister of Economy,

finance and industry,

Nicolas Sarkozy

The Seal Guard, Minister of Justice,

Dominica Perben


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