Key Benefits:
President of the Republic,
On the report of the Prime Minister and the Minister of Economy, Industry and Employment,
Considering the Constitution, including its article 38 ;
Considering the Treaty establishing the European Community, including articles 81 and 82;
Having regard to 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;
Considering the trade code, including its book IV;
Considering the Code of Criminal Procedure;
In light of Act No. 2008-776 of 4 August 2008 on the modernization of the economy, including its articles 95 to 97 and 164 ;
The Council of State heard;
The Council of Ministers heard,
Order:
The title V of Book IV of the Commercial Code is amended as follows:
1° Section L. 450-1 is replaced by the following provisions:
"Art.L. 450-1.-I. ― The agents of the investigative services of the Autorité de la concurrence authorized to do so by the rapporteur general may conduct any investigation necessary to the application of the provisions of headings II and III of this book.
"In the event that investigations are carried out on behalf of or on behalf of a competition authority of another Member State, pursuant to 1 of Article 22 of Council Regulation No. 1 / 2003 on the implementation of the competition rules set out in Articles 81 and 82 of the Treaty establishing the European Community, the General Rapporteur of the Autorité de la concurrence may authorize agents of the competition authority of the other Member State to attend the paragraph
"The modalities of this assistance are set by decree in the Council of State.
“II. – Officials authorized to do so by the Minister responsible for the economy may carry out the necessary investigations to implement the provisions of this book.
"Class A officials under the authority of the Minister for the Economy, specially authorized for this purpose by the Seal Guard, Minister of Justice, on the proposal of the Minister for the Economy, may receive investigative judges from the Letters of Request.
"III. ― Agents referred to in I and II may exercise their powers under this section and the following articles throughout the national territory. » ;
2° In the first paragraph of Article L. 450-3, the words "investigators" are replaced by the words "agents referred to in Article L. 450-1";
3° Article L. 450-4:
(a) In the first sentence of the first paragraph, the words: "Inquiries" are replaced by the words: "The officers referred to in Article L. 450-1";
(b) In the third sentence of the first paragraph, the word "Presidents" is replaced by the words "judges of freedoms and detention";
(c) In the second sentence of the third paragraph, the words: "one or more judicial police officers" are replaced by the words: "the chief of the service who shall appoint judicial police officers";
(d) In the last sentence of the third paragraph, the words: "President of the High Court" are replaced by the words: "Justice of Freedoms and Detention";
(e) The second sentence of the fifth paragraph is replaced by the following:
"The order includes a reference to the faculty for the occupant of the premises or his representative to appeal to counsel of his or her choice. The exercise of this faculty does not result in the suspension of visits and seizure. In the absence of the occupant of the premises, the order is notified after the operations by registered letter with notice of receipt. The same is true when the visit is not carried out in one of the places covered by the order. » ;
(f) The sixth preambular paragraph shall be replaced by the following:
"The order referred to in the first paragraph may be appealed to the first president of the Court of Appeal in the jurisdiction of the judge who authorized the visit and seizure. The parties are not required to be admitted. The appeal must, in accordance with the rules of the Code of Criminal Procedure, be filed by declaration at the court office within fifteen days. This deadline is short from notification of the order. The appeal is not suspensive. The order of the first president of the Court of Appeal is subject to a cassation appeal. The deadline for the cassation appeal is fifteen days. The seized documents are retained until the intervention of the decision of the Court of Cassation. » ;
(g) After the first sentence of the seventh paragraph is inserted the following sentence: "The occupant of the premises may designate one or more representatives to attend the visit and sign the minutes";
(h) In the eighth paragraph, the words: "Inquiries" are replaced by the words: "The officers referred to in Article L. 450-1";
(i) The eighth preambular paragraph is supplemented by the following sentence: "The officers referred to in Article L. 450-1 may proceed during the visit to hearings by the occupant of the premises or his representative in order to collect information or explanations relevant to the needs of the investigation. » ;
(j) The last paragraph is replaced by the following:
"The conduct of visits or seizures may be appealed to the first president of the Court of Appeal in the jurisdiction of the judge who authorized them. The parties are not required to be admitted. The appeal must, according to the rules set out in the Code of Criminal Procedure, be filed by declaration at the court's office within fifteen days from the notification of the order which authorized them or, for persons who have not been visited or seized and who are subsequently questioned by the documents seized during such transactions, from the date on which they were aware of the existence of these transactions and no later than 2 The appeal is not suspensive. The order of the first president of the Court of Appeal is subject to a cassation appeal according to the rules laid down in the Code of Criminal Procedure. The deadline for the cassation appeal is fifteen days. The seized documents are retained until the intervention of the decision of the Court of Cassation. » ;
4° Section L. 450-5 is replaced by the following provisions:
"Art.L. 450-5.-The General Rapporteur of the Autorité de la concurrence shall be informed before their initiation of the investigations that the Minister responsible for the economy wishes to have brought to justice on facts that may arise from articles L. 420-1, L. 420-2 and L. 420-5 and may, within a time limit fixed by decree, take the direction.
"The rapporteur general is promptly informed of the results of investigations carried out by the Minister's services. It may, within a period fixed by decree, propose to the Authority to seize on its own motion. » ;
5° Section L. 450-6 is replaced by the following provisions:
"Art.L. 450-6.-The General Rapporteur shall, for the examination of each case, designate one or more officers of the investigative services to serve as rapporteur.At his written request, the authority of which the agents referred to in II of Article L. 450-1 shall promptly make available to him, in number and for the duration that he has indicated, the agents necessary to carry out the operations referred to in Article L. 450-4. » ;
6° In Article L. 450-7, the word "investigators" is replaced by the words "agents mentioned in Article L. 450-1";
7° In Article L. 450-8, the words "whose agents referred to in Article L. 450-1 and the rapporteurs of the Conseil de la concurrence are responsible" are replaced by the words "whose officers referred to in Article L. 450-1 are responsible".
I. ― The last paragraph of Article L. 461-3 of the Commercial Code is as follows:
"The President, or a Vice-President designated by him, may adopt only the decisions set out in sections L. 462-8 and L. 464-2 to L. 464-6 when they relate to facts before the Autorité de la concurrence pursuant to the fourth paragraph of section L. 464-9. The same can be done with respect to the decisions set out in Article L. 430-5. »
II.-Section L. 462-4 of the same code is replaced by the following:
"Art.L. 462-4.-The Autorité de la concurrence may take the initiative to give an opinion on any matter concerning competition. This notice is made public. It may also recommend to the Minister responsible for the economy or the Minister responsible for the sector concerned to implement the necessary measures to improve the competitive functioning of the markets. »
III. ― Section L. 462-5 of the same code is replaced by the following:
"Art.L. 462-5.-I. ― The Autorité de la concurrence may be seized by the Minister responsible for the economy of any practice referred to in sections L. 420-1, L. 420-2 and L. 420-5, or any facts likely to constitute such practice, as well as any breaches of the commitments made under section L. 430-7-1 or taken in accordance with the concentration decisions made prior to the entry into force of Order No. 2008-1161 of November 13, 2008
“II. ― For all the practices referred to in articles L. 420-1, L. 420-2 and L. 420-5, the Autorité de la concurrence may be seized by the companies or, for any matter relating to the interests they bear, by the bodies referred to in the second paragraph of Article L. 462-1.
"III. ― The general rapporteur may propose to the Autorité de la concurrence that the practices referred to in I and II and article L. 430-8, as well as breaches of the commitments made pursuant to the decisions authorizing concentration operations that occurred prior to the entry into force of order No. 2008-1161 of 13 November 2008 to modernize competition regulation. »
IV. ― 1° In article L. 462-7 of the same code are added two paragraphs as follows:
"The switching actions of the limitation of public action pursuant to Article L. 420-6 are also switched from the prescription to the Autorité de la concurrence.
"However, the limitation is assumed in any event that a period of ten years after the cessation of anti-competitive practice has elapsed without the Autorité de la concurrence having ruled on it. » ;
2° The last paragraph of section L. 462-8 of the same code is supplemented as follows:
"In the event of an unwillingness, the AMF can proceed with the case, which is then treated as an ex officio referral. »
V. ― Section L. 463-2 of the same code is amended to read:
1° The first paragraph is replaced by the following:
"Without prejudice to the measures provided for in Article L. 464-1, the Rapporteur General or an Assistant General Rapporteur appointed by him shall notify the concerned and the Commissioner of the Government of Canada, who may consult the file subject to the provisions of Article L. 463-4 and submit their comments within two months. The submitting companies report promptly to the rapporteur on the file, at any time in the investigative process, any changes in their legal situation that may alter the conditions under which they are represented or in which the grievances may be charged to them. They are inadmissible if they have not made this information. » ;
2° In the fourth paragraph, the words "the president of the council" are replaced by the words "the general rapporteur of the Authority".
VI.-A Article L. 463-3 of the same code, the words: "s judging by the Council" are replaced by the words: "examined by the Autorité", the words: "the president of the Conseil de la concurrence or a vice-president delegated by him" are replaced by the words: "the general rapporteur of the Autorité de la concurrence" and the word: "after" is replaced by the words: "in".
VII. ― Section L. 463-4 of the same code is replaced by the following:
"Art.L. 463-4.- Except in cases where the communication or consultation of these documents is necessary for the exercise of the rights of the defence of a involved party, the general rapporteur of the Autorité de la concurrence may refuse to a party the communication or consultation of certain parts or elements contained in these documents involving the secrecy of the affairs of others. In this case, a non-confidential version and a summary of the relevant documents or elements are available to it.
"A decree in the Council of State specifies the modalities for the application of this article. »
VIII. ― In article L. 463-5 of the same code, the words: "or investigation reports" are replaced by the words: "investigation reports or other documents of criminal investigation".
IX.-Article L. 463-7 of the same code is amended as follows:
In the third and fourth preambular paragraphs, the words "the deputy general rapporteurs" are replaced by the words "or the deputy general rapporteur appointed by him".
X. ― The fourth paragraph of Article L. 464-1 of the same code is deleted.
XI. ― Section L. 464-2 of the same code is amended as follows:
1° In the second sentence of the first paragraph of I, the words "anti-competitive practices" are replaced by the words: "to its competition concerns that may constitute prohibited practices referred to in articles L. 420-1, L. 420-2 and L. 420-5";
2° In III, the words: "and undertakes to change its behaviours for the future" are deleted;
3° At the end of the III is added the following sentence: "When the company or agency undertakes to modify its behaviour for the future, the general rapporteur may propose to the Autorité de la concurrence to take it into account also in setting the amount of the penalty. » ;
4° It is added a V as follows:
"V. ― Where a company or agency fails to dismiss a summons or fails to respond within the prescribed time to a request for information or communication of documents made by one of the agents referred to in I of Article L. 450-1 in the exercise of the powers conferred on it by titles V and VI of Book IV, the Authority may, at the request of the Rapporteur General, issue a corresponding injunction of a limit
"When a company has obstructed the investigation or instruction, in particular by providing incomplete or inaccurate information, or by communicating incomplete or denatured documents, the Authority may, at the request of the rapporteur general, and after hearing the undertaking in question and the Commissioner of the Government, decide to impose a monetary penalty on it. The maximum amount of the latter may not exceed 1% of the amount of the world's highest non-tax revenues realized in one of the fiscal years since the fiscal year prior to the year in which the practices were implemented. »
XII.-Article L. 464-8 of the same code is amended as follows:
1° The second paragraph is deleted;
2° It shall be inserted before the last paragraph, a paragraph to read:
"The president of the Autorité de la concurrence may form a cassation appeal against the decision of the Court of Appeal of Paris having annulled or reformed a decision of the Autorité. » ;
3° It is added a paragraph to read:
"The Autorité de la concurrence ensures the execution of its decisions. »
XIII. ― It is inserted within the same code an article L. 464-9 as follows:
"Art.L. 464-9.-The Minister responsible for the economy may enjoin companies to put an end to the practices referred to in articles L. 420-1, L. 420-2 and L. 420-5 of which they are the authors when these practices affect a local market, do not relate to the facts of articles 81 and 82 of the Treaty establishing the European Community and subject to the fact that each of the last year has reached
"The Minister responsible for the economy can also, under the same conditions, propose to them to transfer. The amount of the transaction cannot exceed 75,000 € or 5% of the last known sales in France if this value is lower. The terms of the transaction are set by decree in the Council of State. The timely execution of obligations resulting from the injunction and acceptance of the transaction extinguishes any action before the Autorité de la concurrence for the same facts. The Minister responsible for the economy informs the Autorité of the competition of the transactions concluded.
"It cannot propose a transaction or impose an injunction where the same facts have, in advance, been subject to a referral by the Autorité de la concurrence by a company or agency referred to in the second paragraph of Article L. 462-1.
"In the event of a refusal to transfer, the Minister responsible for the economy seized the Autorité de la concurrence. It also seizes the Autorité de la concurrence in the event of failure to comply with the injunctions provided for in the first paragraph or the obligations resulting from the acceptance of the transaction.
"The money from the transaction is paid to the Public Treasury and recovered as foreign tax and domain claims. »
After article L. 470-7 of the same code, an article L. 470-7-1 is inserted as follows:
"Art. L. 470-7-1. - A decree sets out the terms of publicity of decisions taken under articles L. 462-8, L. 464-1, L. 464-2, L. 464-3, L. 464-5, L. 464-6 and L. 464-6-1. »
In all legislative and regulatory provisions, the reference to the Conseil de la concurrence is replaced by the reference to the Autorité de la concurrence.
I. ― The members of the Conseil de la concurrence are held in their office until the first meeting of the Autorité de la concurrence. Until that date, the Conseil de la concurrence and the Minister responsible for the economy exercise the powers vested in them by the legislative and regulatory provisions in force on the date of publication of this order.
II. ― The validity of the acts of prosecution, instruction and sanction carried out prior to the first meeting of the Autorité de la concurrence is appreciated in relation to the texts in force on the date they were taken or completed.
III. ― The review of concentration cases notified prior to the date of the first meeting of the Autorité de la concurrence and the review of cases of anti-competitive practices that resulted in a grievance notification or a non-court proposal prior to the same date shall continue in accordance with the procedural rules in force prior to that date. The College of the Autorité de la concurrence is substituted for the College of the Conseil de la concurrence for the examination of these cases, including for cases in deliberation.
IV. ― The parties that have formed, against the order that authorized the visit provided for inArticle L. 450-4 of the Commercial Codean appeal before the Court of Cassation on the day of the publication of this order shall have a period of one month to appeal the order to which the order is subject to the order to be filed, as from the date of publication of this order, under the conditions set out in the order sixth paragraph of Article L. 450-4 of the Commercial Code in its writing from this order. This appeal is undesirable for the appeal in cassation.
If the authorization for a visit and seizure has not been subject to a cassation appeal or if such authorization has been subject to a cassation appeal having given rise to a decision to reject the Court of Cassation, an appeal against the authorization is open to the Court of Appeal of Paris seized in the context of the Court of Appeal of ParisArticle L. 464-8 of the Commercial Codeexcept for cases that have been the subject of an irrevocable decision on the date of publication of this order.
When an appeal is before the Court of Cassation against a judgment of the Paris Court of Appeal in the context of theArticle L. 464-8 of the Commercial Code, the parties have the power to request a referral to the Court of Appeal of Paris for the examination of an appeal against the authorization of visit and seizure issued by the Judge of Freedoms and Detention.
V. ― The rules of procedure of the Conseil de la concurrence remain applicable until the adoption of its regulations by the Autorité de la concurrence.
The Prime Minister, the Minister of Economy, Industry and Employment and Seal Custody, Minister of Justice, are responsible for the application of this Order, which will be published in the Official Journal of the French Republic.
Done in Paris, November 13, 2008.
Nicolas Sarkozy
By the President of the Republic:
The Prime Minister,
François Fillon
Minister of Economy,
industry and employment,
Christine Lagarde
The Seal Guard, Minister of Justice,
Rachida Dati
