Key Benefits:
The Prime Minister,
On the report of the Minister of Economy, Finance and Industry and Seal Guard, Minister of Justice,
Having regard to Council Regulation (EC) No. 1/2003 of 16 December 2002 on the implementation of the competition rules provided for in Articles 81 and 82 of the Treaty;
Having regard to Council Regulation (EC) No. 139/2004 of 20 January 2004 on the control of concentrations between enterprises;
Considering the Code of Criminal Procedure;
Considering the new Code of Civil Procedure;
Considering Book IV of the Commercial Code, last amended by Order No. 2004-1173 of 4 November 2004 on the adaptation of certain provisions of the Commercial Code to Community competition law and by Law No. 2004-1343 of 9 December 2004 on the simplification of the law;
In view of Decree No. 2002-689 of 30 April 2002, setting out the conditions for the application of Book IV of the Commercial Code relating to freedom of prices and competition;
The State Council (Finance Section) heard,
Decrete:
In Article 2 of the above-mentioned Decree of 30 April 2002, the words: "of the above-mentioned Council Regulation of 21 December 1989 on the Control of Concentration Operations, as amended by the above-mentioned Council Regulation of 30 June 1997" are replaced by the words: "of Council Regulation (EC) 139/2004 of 20 January 2004 on the Control of Concentrations Between Business".
In article 4 of the same decree, the words: "of the above-mentioned regulation of the Council of 21 December 1989" are replaced by the words: "of Regulation (EC) No 139/2004 of the Council of 20 January 2004 concerning the control of concentrations between enterprises".
Article 15 of the same decree is supplemented by a second paragraph as follows:
"In the case provided for in Article L. 450-1 of the Commercial Code where the investigators are assisted by an agent of a competition authority of another Member State of the European Community, the minutes mention them. They indicate the identity of this officer and the date of the decision allowing him to assist the investigators. »
Article 19 of the same decree is supplemented by a third paragraph as follows:
"On the occasion of the appeal proceedings before the Paris Court of Appeal against its decisions, the Conseil de la concurrence is represented by its president or the person whom the latter designates for that purpose. »
It is inserted after article 30 of the same decree an article 30-1 written as follows:
"Art. 30-1. - The production of memoranda, supporting documents or observations made before the Conseil de la concurrence under the signature and stamp of a lawyer shall take election of domicile to the law firm or to the headquarters of the legal firm. »
After article 36 of the same decree, an article 36-1 is inserted as follows:
"Art. 36-1. - I. - For the purposes of Article L. 463-4 of the Commercial Code, when a person takes precedence over the secrecy of business, it shall notify, on the occasion of their communication to the Conseil de la concurrence, of the information, documents or parts of documents considered by him or her as putting into play the secret of business and asks, for reasons that it specifies for each of them, their classification as a confidential annex. It provides separately a non-confidential version of these documents as well as a summary of the items it requests for classification. Where applicable, it designates companies in respect of which business secrecy may apply.
"When information, documents or parts of documents that may put into play the secret of cases are not communicated to the Conseil de la concurrence by the person who may avail himself of this secret and has not filed a request for classification, the rapporteur general invites him to submit, if he wishes, a request for classification in a confidential annex in accordance with the requirements of the first paragraph.
“II. - Information, documents or parts of documents for which an application for classification has not been filed are deemed not to put the business secret at stake.
"The President of the Conseil de la concurrence or the Associate Vice-President shall give notice to the person concerned of the classification in a confidential annex of the information, documents or parts of documents considered by him or her as involving the confidentiality of the cases. The applicant may refuse the classification in whole or in part if the application has not been filed in accordance with the provisions of the first paragraph of the I, or has been filed beyond the time limits of the Rapporteur General, or if it is manifestly unfounded. The non-confidential version of the documents and their summary are provided on file.
"III. - When the rapporteur considers that a document classified as a confidential annex is necessary for the proceedings, he shall notify the person who requested the classification by registered letter with acknowledgement of receipt. If the person opposes, within the time limit provided by the rapporteur, that the document be used in the proceedings, the person shall have the President of the Competition Council. If the delegated vice-president or vice-president responds to his opposition, the exhibit is maintained in the confidential annex. Otherwise, it authorizes the use of the exhibit by the rapporteur and his communication to the party(s) involved, as well as to the Commissioner of the Government.
"When a party in question considers that a document classified as a confidential annex is necessary for the exercise of its rights, it may request the communication or consultation by submitting a reasoned request to the rapporteur. The rapporteur informs the person who requested the classification of this piece by registered letter with acknowledgement of receipt. If the latter is opposed, within the time limit provided by the rapporteur, to the disclosure of the document to the party making the request, it shall refer to the President of the Competition Council. If the delegated vice-president or vice-president responds to his opposition, the exhibit is maintained in the confidential annex. If not, it authorizes the communication or consultation of the exhibit to the party that has made the request, and, where applicable, to the other parties involved for which the exhibit is required to exercise their rights, as well as to the Commissioner of the Government. »
In article 37 of the same decree, the words: "When sending the notification of grievances, the rapporteur general asks, in the letter of transmission, the companies involved in the grievances notified" are replaced by the words: "The rapporteur general may at any time request the companies involved."
In the first paragraph of Article 40 of the same Decree, the words: "Articles 81 and 82 of the Treaty establishing the European Community and of" are added after the words: "with regard to".
After section 42 of the same decree, articles 42-1 and 42-2 are inserted as follows:
"Art. 42-1. - When the Conseil de la concurrence envisages the application of Article L. 464-2 of the Commercial Code relating to the acceptance of undertakings proposed by the companies, the rapporteur makes known to the companies or organizations concerned his preliminary assessment of the practices involved. This assessment may be made by mail, by minutes or, where the board is seized with a request for interim measures, by submitting an oral report in session. A copy of the evaluation is addressed to the applicant and the Commissioner of the Government, except where it is presented orally in a session in the presence of the parties.
"The deadline for companies or organizations to formalize their commitments at the end of the preliminary assessment is set, either by the rapporteur in the event that the evaluation was made by mail or by minutes, or by the Conseil de la concurrence in the event that this evaluation was presented orally in session. This period may not be less than one month, unless agreed by the companies or organizations concerned.
"On receipt of the commitments proposed by the companies or organizations concerned after the deadline referred to in the second paragraph, the rapporteur general shall communicate their content to the author or the authors of the referral and to the Commissioner of the Government. It also publishes, by any means, a summary of the case and commitments to allow interested third parties to present their observations. It shall set a time limit, which shall not be less than one month from the date of communication or publication of the content of the commitments, for the production of the comments of the parties, the Commissioner of the Government and, where appropriate, interested third parties. These observations are made on file.
"The parties and the Commissioner of the Government are convened at the meeting by sending a letter from the rapporteur general accompanied by the proposal for commitments at least three weeks before the day of the meeting. They may make oral comments at the meeting.
"Art. 42-2. - For the purposes of the winding-up provisions of Article L. 464-2 of the Commercial Code, the Conseil de la concurrence shall decide after its seizure under the conditions laid down in Article L. 462-5 of the same Code. Its decision is preceded by the establishment of a report assessing the final amount of the offence. This report is sent to the parties and the Commissioner of the Government who have a period of one month to present their written comments. The parties and the Government Commissioner may also make oral comments at the meeting. »
I. - In article 43 of the same decree, the words: "From II of Article L. 464-2 of the Commercial Code" are replaced by the words: "From III of Article L. 464-2 of the Commercial Code".
II. - In the first and last paragraphs of Article 44 of the same Decree, the words "in the third of Article L. 464-2 of the Commercial Code" are replaced by the words "in the fourth of Article L. 464-2 of the Commercial Code".
Article 46 of the same decree is thus amended:
1° At 3°, the words "and, if applicable, articles 81 and 82 of the Treaty establishing the European Community" are inserted after the words "L. 420-5 of the same Code".
2° At 4°, the words: "as well as companies or organizations that have undertaken commitments" are inserted after the words: "to persons who receive the notification of grievances or the report".
After article 48 of the same decree, articles 48-1 to 48-3 are inserted as follows:
"Art. 48-1. - For the application of 2 of Article 15 of Regulation (EC) No. 1/2003 of the Council 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, the judicial decisions that are based on Articles 81 and 82 of this Treaty are notified by the Registry of the Jurisdiction to the European Commission, the Conseil de la concurrence and the Minister responsible for the economy, by Reference is made to this notification in the device of the decision.
"Art. 48-2. - When the judge intends to seek the opinion of the European Commission pursuant to the provisions of Article 15, paragraph 1, of Council Regulation (EC) No. 1/2003 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, the judge shall notify the parties of the matter. Unless they have already concluded on this point, he invites them to make comments within a time limit that he sets.
"On receipt of comments or on expiry of the time limit, the judge may request the opinion of the European Commission by a decision not subject to appeal. He overseoites to decide until the notice is received or until the expiry of a time limit he sets.
"The decision requesting the opinion, as well as any comments, is addressed to the European Commission by the court office. This decision, along with the date of transmission of the file, is notified to the parties by registered letter with a request for notice of receipt.
"Once the notice is received by the court, the court shall be notified to the parties who may make submissions by the court.
"Art. 48-3. - When the judge intends to request information from the European Commission pursuant to the provisions of Article 15, paragraph 1, of Council Regulation (EC) No. 1/2003 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, the judge shall notify the parties of this.
"It notifies the European Commission's response to parties that may make comments. »
The provisions of Article 6 of this Decree shall apply to cases for which the consultation of the file under the conditions provided for by the provisions of Article L. 464-6 of the Commercial Code and Articles 34, 36 and 40 of the above-mentioned Decree of 30 April 2002 comes after the date of entry into force of this Decree.
The Minister of State, Minister of Interior and Land Management, Minister of Economy, Finance and Industry, and Minister of Justice, are responsible, each with respect to him, for the execution of this decree, which will be published in the Official Journal of the French Republic.
Done in Paris, December 27, 2005.
Dominique de Villepin
By the Prime Minister:
Minister of Economy,
finance and industry,
Thierry Breton
The Minister of State,
Minister of Interior
and landscaping,
Nicolas Sarkozy
The Seal Guard, Minister of Justice,
Pascal Clément
