Key Benefits:
Publics concerned: the government of New Caledonia, the competition authority of New Caledonia, civil and administrative courts, economic operators, merchants and commercial companies.
Subject: determination of the procedures for the exercise of the remedies provided for in sections 4 and 5 of Order No. 2014-471 of 7 May 2014 and requests for a stay of execution; determination of the competent court of appeal to decide on appeals against decisions rendered by the courts referred to in Article 1 of the above-mentioned order of 7 May 2014;
Entry into force: the provisions of Articles 1 to 22 of this Decree (cf. Article 23) come into force on the day of the first meeting of the College of Competition Authority of New Caledonia as the provisions of Articles 1 to 5 of Order No. 2014-471 of May 7, 2014 (cf. Article 8 of the Order).
Notice: Articles 2 to 9 of this Decree define the procedure for the application of appeals against the decisions of the competition authority of New Caledonia provided for in Article 5 of Order No. 2014-471 of 7 May 2014 and correspond to Articles R. 464-12 to R. 464-19 of the Commercial Code. Sections 10 and 11 of this Order define the terms and conditions for the application of remedies for the cancellation or re-training of the interim measures taken by the competition authority of New Caledonia as provided for in Article 4 of the Order of 7 May 2014 referred to above and correspond to Articles R. 464-20 and R. 464-21 of the Commercial Code. Articles 12 to 14 of this Decree relate to requests for stay in execution and reinstate the provisions of articles R. 464-22 to R. 464-24 of the Commercial Code. Articles 15 to 21 organize the procedure of various requests by retaking and adapting the provisions of articles R. 464-25 to R. 464-31 of the trade code. Article 22 of this decree attributes to the Court of Appeal of Nouméa the jurisdiction to hear decisions rendered by the Court of First Instance of Nouméa for disputes not involving a merchant, a craftsman and the mixed court of commerce of Nouméa for disputes concerning a merchant or a craftsman. It corresponds to article R. 420-5 of the trade code. Finally, Article 23 of this Decree provides, in coordination with the provisions of Article 8 of Order No. 2014-471 of 7 May 2014, that the provisions of Articles 1 to 22 of this Decree come into force on the day of the first meeting of the College of Competition Authority of New Caledonia.
References: This Order is made for the purposes of Order No. 2014-471 of 7 May 2014 extending and adapting to New Caledonia provisions of Book IV of the Code of Commerce under the jurisdiction of the State in respect of powers of investigation, remedies, sanctions and offences. It is available on the website Légifrance (http://www.legifrance.gouv.fr).
The Prime Minister,
On the report of the Seal Guard, Minister of Justice, and the Overseas Minister,
Considering the Constitution, in particular its title XIII;
Considering the amended Organic Law No. 99-209 of 19 March 1999 on New Caledonia;
Considering the trade code, including its book IV;
Considering the applicable New Caledonia trade code, as amended by the Law of Country No. 2013-8 of 24 October 2013 relating to competition in New Caledonia, the Law of Country No. 2014-7 of 14 February 2014 relating to Books III and IV of the Legislative Part of the applicable New Caledonia trade code and the Law of Country No. 2014-12 of 24 April 2014 establishing the new competition authority
Having regard to amended Order No. 2014-471 of 7 May 2014 extending and adapting to New Caledonia provisions of Book IV of the Commercial Code under the jurisdiction of the State in respect of powers of investigation, remedies, sanctions and offences;
Considering the opinion of the Government of New Caledonia of 1 December 2015;
The State Council (Finance Section) heard,
Decrete:
The competition authority of New Caledonia is a party to the proceeding under the terms and conditions set out in this title.
The remedies provided for in article 5 of the above-mentioned order of 7 May 2014 shall be filed by a triple copy written statement filed against receipt at the office of the Court of Appeal of Paris, which shall be limited to:
1° If the applicant is a natural person, his name, first name, occupation and domicile; if the applicant is a legal entity, its name, form, head office and body that represents it; if the statement is made on behalf of the President of the Government of New Caledonia, it shall indicate, where appropriate, the name and address of the service that represents it;
2° The subject of appeal.
When the statement does not contain the statement of the grounds invoked, the applicant must, as soon as it is inadmissible, file the statement to the Registry within two months of notification of the New Caledonia Competition Authority's decision.
The notice of appeal refers to the list of documents and supporting documents produced. The documents and documents mentioned in the statement are delivered to the Court of Appeal Registry at the same time as the statement. A copy of the decision under appeal is attached to the complaint.
When the appellant is not represented, he shall promptly inform the court of any change of domicile.
Within five days after the filing of the declaration, the applicant must, as soon as the applicant is inadmissible, issue a copy of the statement by registered letter with a request for notice of receipt to the parties to whom the decision of the competition authority of New Caledonia has been notified, as reflected in the notification letter provided for in the second paragraph of Article 20.
Upon registration of the appeal, the Registry of the Court of Appeal shall notify a copy of the statement referred to in section 2 and of the documents attached to it to the competition authority of New Caledonia, as well as to the President of the Government of New Caledonia if he is not an applicant for appeal.
The competition authority of New Caledonia shall transmit to the court's office the record of the case, which shall include the minutes and investigation reports, grievances, comments, report, documents and submissions referred to in article Lp. 463-2 of the applicable New Caledonia Commercial Code.
The Registry shall transmit to the competition authority of New Caledonia and to the President of the Government of New Caledonia a copy of the subsequent procedural documents, including those resulting from the application of Articles 6, 7 and 9.
An incident appeal may be lodged even though its author would be forclos to make a principal appeal. In the latter case, however, the appeal is not admissible if it is filed for more than one month after the receipt of the letter under section 4 or if the main appeal is not admissible.
The incident appeal is filed in accordance with the terms and conditions provided for in Article 2. It is denounced, under the conditions set out in section 4, to the applicants for the main appeal.
Where the appeal may affect the rights or charges of other persons who were parties in question before the competition authority of New Caledonia, such persons may join the proceeding before the Court of Appeal by written declaration and reasoned filed in the Registry under the conditions set out in section 2 within one month after the receipt of the letter provided for in section 4. It is notified to applicants for appeal.
At any time, the first president or his or her delegate or the court may challenge the same persons. The Registry shall notify the decision to question by registered letter with a request for a notice of receipt.
The first president of the Court of Appeal or his or her delegate sets out the deadlines for the parties to the proceeding to communicate their written submissions and file a copy of them at the court office. It sets out the deadlines in which the competition authority of New Caledonia and the President of the Government of New Caledonia, when it is not a party to the proceeding, may file written submissions. It also sets the date for discussion.
The Registry shall notify the parties, the competition authority of New Caledonia and the President of the Government of New Caledonia of these delays when it is not a party to the proceeding, and summons them at the hearing scheduled for the debates by registered letter with a request for notice of receipt.
Comments submitted by the competition authority of New Caledonia and the President of the Government of New Caledonia, when he is not a party to the proceeding, are brought by the Registry to the attention of the parties to the proceeding.
The President of the Government of New Caledonia, when he is not a party to the proceeding, and the competition authority of New Caledonia may make oral representations at the hearing at their request or at the request of the first president or court.
The remedies provided for in Article 4 of the above-mentioned Order of 7 May 2014 shall be brought before the Paris Court of Appeal by means of a summons to a hearing before the first president or his delegate.
In addition to the mentions prescribed for the acts of judicial officer, the summons contains the subject matter of the appeal with a statement of means.
Under the same sanction:
1° A copy of the decision under attack is attached to the summons;
2° A copy of the summons is filed in triple copy at the Court of Appeal Registry no later than five days after the date of its service.
As soon as the appeal is inadmissible, the summons is issued to all parties in question to the competition authority of New Caledonia and to the President of the Government of New Caledonia.
A copy of the summons is immediately notified to the diligence of the judicial officer to the competition authority of New Caledonia by registered letter with a request for notice of receipt.
The President of the Government of New Caledonia, when he is not a party to the proceeding, and the competition authority of New Caledonia has the power to make written and oral submissions. They are presented at their request or at the request of the first president or court.
Requests for a stay of execution pursuant to Article 5 of the above-mentioned Order of 7 May 2014 shall be sent by way of summons before the first president of the Court of Appeal of Paris, in accordance with the terms of the second paragraph of Article 485 of the Code of Civil Procedure, where the case requires celebrity.
In addition to the mentions prescribed for the acts of judicial officer, the summons contains the statement of the means invoked in support of the application for stay.
Under the same sanction, it specifies the date on which the appeal against the decision on which the stay of execution is requested.
As soon as the application is inadmissible, the summons is issued to all parties in question to the competition authority of New Caledonia and to the President of the Government of New Caledonia. A copy of the summons is immediately notified to the diligence of the judicial officer to the competition authority of New Caledonia by registered letter with a request for notice of receipt.
Notifications between parties shall take place by registered letter with request for notice of receipt or by direct notification between the parties' lawyers. Procedural documents must be deposited with the Registry in a triple copy.
In front of the Court of Appeal or its first president, the representation and assistance of the parties and the competition authority of New Caledonia shall be exercised under the conditions provided for in Article 931 of the Code of Civil Procedure.
The Public Prosecutor ' s Office may communicate cases in which it considers it necessary to intervene.
The decisions of the Court of Appeal of Paris or its first President shall be notified by registered letter with a request for notice of receipt by the Court's Registry to the parties to the proceeding, to the competition authority of New Caledonia and to the President of the Government of New Caledonia when he is not a party to the proceeding.
The competition authority of New Caledonia ensures the execution of its decisions and publishes them on its website. This publication makes the appeal period for third parties.
The decisions taken by the rapporteur general of the competition authority of New Caledonia pursuant to Article Lp. 463-4 of the applicable New Caledonia trade code that grant protection of the secrecy of cases or refuse the lifting of this secret may only be appealed with the decision of the authority on the merits.
The decisions of the competition authority of New Caledonia are notified by registered letter with request for notice of receipt.
In the event of a nullity, the notification letter indicates the time limit for appeal and the manner in which it may be exercised. It contains the names, qualities and addresses of the parties to which the decision of the competition authority of New Caledonia has been notified.
The time increments set out in section 643 of the Code of Civil Procedure do not apply to appeals under the provisions of this chapter.
The Court of Appeal of Nouméa is competent to hear decisions rendered by the courts referred to in a and b of Article 1 of the above-mentioned Order of 7 May 2014.
The provisions of Articles 1 to 22 come into force on the day of the first meeting of the College of Competition Authority of New Caledonia.
The guard of the seals, Minister of Justice, and the Minister of the Overseas are responsible, each with regard to it, for the execution of this decree, which will be published in the Official Journal of the French Republic.
Done on December 29, 2015.
Manuel Valls
By the Prime Minister:
Minister of Overseas,
George Pau-Langevin
The Seal Guard, Minister of Justice,
Christiane Taubira
