Cartels 2024 Comparisons

The statutory basis to challenge cartels in France is Article L.420-1 of the French Commercial Code (FCC). This article implements into the French national system Article 101 of the Treaty on the Functioning of the European Union (TFEU), and applies when there is an impact on commerce between member states. Where only restrictions of competition in the French market are in play, L.420-1 will be applied, but in practice these two provisions are applied in parallel by the French Competition Authority (FCA).

Cartels might be caught by:

• public enforcement – by the FCA, and to a lesser extent, the Directorate General for Consumer Affairs, Competition and Fraud Prevention (DGCCRF);
• private enforcement – by companies and/or individuals on the basis of follow-on actions, stand-alone actions, and collective actions. These actions are heard by civil and administrative courts;
• criminal law – Article L.420-6 FCC punishes with up to four years of imprisonment and a fine of EUR75,000, any individual who fraudulently takes a personal and decisive role in the design, organisation, or implementation of a cartel. Only criminal courts have jurisdiction to rule on these actions.

Enforcement to date has been mostly by way of public actions, with the FCA at the forefront of developing competition law in France. However, private enforcement is developing, and criminal enforcement is also used to a wider extent these days. The FCA considers that all three levels of enforcement are part of the same jigsaw, each necessary and complementing each other, to tackle cartels in France.

The French Competition Authority

In France, the FCA is the main authority responsible for enforcing competition laws against cartels. The FCA is an independent administrative authority with a College of members with the power to impose significant fines upon companies involved in cartel conduct, up to 10% of a company’s global annual turnover (Article L. 464-2 FCC).

The level of fines was comparatively low in 2023, with less than EUR200 million imposed in total. However, this should not be interpreted as a shift in French public enforcement. The level of fines can vary significantly from one year to another depending on the workflow and the size of matters handled before/after the end of the year. The pandemic slowdown in investigations has the consequence that less cases are being heard in 2024 and, finally, there is also a growing perception in France that leniency applications are less numerous and concern smaller cases.

Cartel investigations are typically handled by the Investigation Services of the FCA managed by a General Rapporteur autonomously from the College, as a result of the principle of separation of powers (see 2.1 Initial Investigatory Steps).

The DGCCRF

The DGCCRF is an administration under the supervision of the Ministry of the Economy. The DGCCRF can conduct cartel investigations in parallel to the French Competition Authority. However, its powers are more limited than the FCA’s. The DGCCRF can investigate and then refer the case to the FCA, except if the matter is really local – in which case the DGCCRF can propose companies to settle the case for limited amounts (Article L. 464-9 FCC). If companies refuse to settle, the case can then be brought before the FCA.

Civil and Criminal Courts

Civil liability of companies involved in a cartel can also be sought in the context of damages actions in private enforcement procedures, provided for in Articles L. 481-1 to L. 483-11 FCC (see 1.3 Private Challenges to Cartel Behaviour/Effects).

Individuals may also face criminal penalties under Article L. 420-6 FCC, which includes imprisonment and fines for engaging in anti-competitive agreements (see 1.1 Statutory Bases for Challenging Cartel Behaviour/Effects for further details). These penalties are imposed by criminal courts.

In France, private parties can take legal action against cartels by suing for damages resulting from anti-competitive behaviours, based on Order No 2017-303 and Decree No 2017-305 of 9 March 2017, which transpose Directive 2014/104/UE (the “Damages Directive”). Articles L. 481-1 to L. 483-11 FCC now list the rules regarding actions for damages following anti-competitive behaviour.

A victim of anti-competitive behaviour needs to demonstrate the harm, the infringement and the causal relationship between the two. A decision from the FCA or the European Commission establishing a violation is usually necessary to pursue a private lawsuit, and plaintiffs need to demonstrate actual loss due to the cartel’s conduct. Although these so-called follow-on actions are the most frequent, standalone claims can also be lodged, but in this case, the claimant needs to establish the infringement of competition law itself. France is increasingly becoming an attractive forum for private litigation due to the historically significant activity of the FCA in the cartel space.

A collective action mechanism stemming from Directive (EU) 2020/1828 on Collective Redress has been adopted by the French Parliament in February 2024, but as of May 2024, has not been enacted yet. The bill is based on an opt-in system, and third-party funding is subject to strict conditions. This bill represents a significant step forward in private enforcement compared to the previous regime under the Hamon Law of 2014, which did not yield the expected results. 

In the coming years, private enforcement may become more significant, though probably less so in the cartel space than in other fields of competition law, such as abuse of dominance (particularly in the tech sector). The main roadblock to the development of private enforcement lies in the difficult access to evidence. In particular, in France, there is no discovery procedure similar to that in the United States, for instance.

The notion of “cartel” is not explicitly defined by French law. The term “cartel” is often used to describe agreements or concerted practices between two or more legally distinct and economically independent undertakings, which have the object or effect of preventing, restricting or distorting competition in a given product or service market. Cartels often involve fixing prices, limiting production, sharing markets, or other practices that restrict competition.

This definition is reflected in Article L. 420-1 FCC which refers to “concerted actions, agreements, express or tacit understandings or coalitions”, whose “purpose or effect is to prevent, restrict or distort competition on a market, in particular when they are aimed at:

• Restricting access to the market or the free exercise of competition by other undertakings;
• Obstructing the free determination of prices by artificially favouring their rise or fall;
• Limiting or controlling production, outlets, investment or technical progress; or
• Sharing markets or sources of supply”.

In practice, the FCA, like the European Commission, does not require a formal “agreement” to consider a practice as a cartel and the list of the kinds of behaviour which may be caught, is not closed. Any contact with competitors aimed at sharing commercially sensitive information and/or co-ordinating price or non-price competition parameters, including purchaser cartels, might be treated as a cartel. Indeed, although bid rigging is not expressly mentioned in Article L. 420-1 FCC, it is one of the more classic forms of “cartel conduct” under French competition law and the FCA has brought several cases focusing on this kind of conduct.

Not all joint action between competitors violates rules against cartels. For example, Article L. 420-4 FCC (which mirrors Article 101(3) TFEU) provides a list of exceptions under which certain types of conduct falling under the French definition of a cartel are not subject to the prohibition of such conduct, but this is rarely applied in practice, especially for “by object” infringements. Nevertheless, practices which result from the application of a legislative text or a regulatory text are exempt.

Certain sectors, such as agriculture (see Article L. 420-4 FCC) can also benefit from exemptions under specific conditions.

In France, the limitation period for actions concerning cartel conduct under competition law is primarily governed by Article L. 462-7 FCC. This article stipulates that the FCA cannot initiate actions against practices dating back more than five years, if no action has already been taken to investigate, establish or sanction them. However, this period can be “interrupted” by, for example, any act aimed at investigating, establishing, or sanctioning anti-competitive practices by the FCA, a national competition authority of another member state of the European Union, or the European Commission.

Under Article L. 462-7 (II) FCC, the limitation period is considered to have expired when a period of ten years has passed since the end of the anti-competitive practice, in cases in which the FCA did not issue a decision on it. After this time, the FCA can neither fine nor prosecute any infringement of competition law.

In practice, cases where the limitation period expires before the FCA has intervened are not frequent. As long as the anti-competitive practice has not ended, the FCA can sanction such a practice, regardless of its starting date; eg, in the “flour” case, the (individual) duration of the practices was up to 46 years for some companies (decision No 12-D-09 of 13 March 2012).

Article L. 420-1 FCC prohibits cartels and concerted practices that restrict competition in the French market, irrespective of whether the involved companies are based in France or abroad. The key criterion for FCA jurisdiction is the effect on competition within French territory. As such, if conduct occurs entirely in foreign jurisdictions and has no effect in France, the FCA has no power to intervene.

However, evidence can be collected in another jurisdiction to prove an alleged cartel in France. For instance, in 2008, the FCA collaborated with the UK Office of Fair Trading to carry out dawn raids in the UK (decision No 08-D-30 of 4 December 2008). This collaboration allowed the FCA to gather evidence on alleged cartel practices affecting the kerosene market in La Réunion, a French overseas region. More generally, the FCA is particularly vigilant towards anti-competitive behaviours in French overseas territories (known as Départements et Régions d’Outre-Mer or DROM) and has full jurisdiction over the enforcement of competition law in these territories. The FCA also frequently collaborates with the competition authorities of New Caledonia and French Polynesia, which have their own competition law regimes.

In a competition law context, comity primarily refers to international and/or European co-operation between competition authorities. This can be especially important in the context of competition inspections.

At the EU level, principles of comity are applied in France through Article 22(1) of Regulation 1/2003, which provides that a member state’s competition authority can carry out inspections or investigations under its national law for another member state’s competition authority to identify breaches of Articles 101 and 102 TFEU. Co-ordinated inspections take place through the auspices of the European Competition Network (ECN), which brings together national competition authorities and the European Commission, facilitating co-operation, which in practice happens quite a lot.

In addition, Article 9(2) of the “Damages” Directive 2014/104/EU regarding “effects of national decisions” requires member states to ensure that “where a final decision [on an infringement of competition law] is taken in another member state, that final decision may, in accordance with national law, be presented before their national courts as at least prima facie evidence that an infringement of competition law has occurred and, as appropriate, may be assessed along with any other evidence adduced by the parties”.

At the international level, pursuant to Article L.462-9(I) FCC, the FCA may conduct investigations upon request of other competition authorities and subject to certain conditions. The FCA can enter into agreements with competition authorities outside of the EU to facilitate co-operation.

There have been no significant changes affecting cartel regulatory activity resulting from changes in the composition of executive, legislative and/or judicial governmental authorities or in the identity of individuals responsible for enforcement in France during the past year.

In terms of categories of business activity, recent FCA activities clearly illustrate that sustainability considerations have become central to its regulatory agenda. For example, the FCA:

• emphasised in its 2023-2024 roadmap its willingness to step up its work on sustainable development;
• adopted a decision concerning Bisphenol-A in December 2023, which flagged the FCA’s commitment to treating environmental factors as competitive parameters on which co-ordination amounts to cartel behaviour;
• on 27 May 2024, the FCA published a communication providing informal guidance on sustainable development, similar to the European Commission’s and other national authorities such as the Dutch competition authority; and
• has recently created a new role and appointed a head of the Sustainable Development Network of the investigations services; this reflects the growing importance of sustainable development considerations in the work of the FCA. 

Unsurprisingly, the “tech” sector is also another area of focus for the FCA.

After having published a joint study with the German competition authority (Bundeskartellamt) in 2019, which notably dealt with algorithm-driven collusion between competitors, the FCA reaffirmed its commitment to digital issues in its 2024–2025 roadmap. Whilst it has been especially busy with consultations and studies into these nascent markets (see for example, its consultations into virtual reality universes and generative AI in early 2024, and its opinion on competition in the cloud sector of 2023), enforcement activity has not been forgotten. For example, in October 2023, the FCA carried out dawn raids in the graphic cards sector, and very soon after this, Benoit Coeure said that the FCA’s investigation services were “considering other possible actions” in this space. In addition, a new “digital economy” unit was created in 2020 within the FCA, comprised of data scientists, economists, lawyers and engineers. The aim is to develop expertise in all digital areas and to assist in the investigation of anti-competitive practices in that sector. 

The initial investigatory steps taken by the FCA and their usual sequence are described below. The procedure before the DGCCRF is also briefly mentioned.

Referral of a Case to the FCA and Self-Referral

A case can be initiated either by referral (saisine) to the FCA or at the FCA’s own initiative (auto-saisine) (Article L. 462-5 FCC).

Referral to the FCA can be made, in particular, by:

• the Minister responsible for the economy (in practice, through the DGCCRF);
• companies, generally through a formal complaint or a leniency application, or individuals through the new informant tool;
• professional organisations, trade unions, consumer organisations;
• the Regulatory Authority for Audiovisual and Digital Communication (Arcom); or
• the overseas regions (Mayotte, Wallis and Futuna, Saint Barthélemy, Saint Martin, and Saint Pierre and Miquelon), which play an increasingly important role in French competition enforcement.

The FCA may also initiate a case on its own initiative. In this situation, the General Rapporteur proposes to the FCA to self-refer the practices for investigation. These investigations can be initiated in various ways. For example, the Conseil de la concurrence famously initiated a case in 2001 following a TV report showing evidence of a cartel between luxury hotels in Paris (decision No 05-D-64 of 25 November 2005). In the flour case (decision No 12-D-09 of 13 March 2012), the FCA started its investigation after a leniency application was submitted in Germany. Competition authorities communicate regularly about their investigations in the context of the ECN and other co-operation agreements, and an investigation opened in one jurisdiction can trigger investigations in others.

In practice, the FCA conducts a preliminary assessment to determine whether a complaint warrants an investigation but remains free not to investigate, in line with the “discretion to prosecute” principle recognised in Article 4(5) of the ECN+ Directive (Directive (EU) 2019/1) and transposed under French law in Article L.462-8 FCC. If there are sufficient grounds to suspect a cartel or a concerted practice, the FCA can open an investigation.

Investigations by the FCA

In the FCA there is a functional separation between:

• the Investigation Services composed of case handlers and headed by the General Rapporteur, in charge of investigations, dawn raids, etc; and
• the College of members, composed of the President of the FCA, four Vice Presidents, and 12 “non-permanent” members, adopting decisions.

These features of the French system may lead to a situation where the College decides to drop charges against the parties, against the conclusions of the Investigation Services.

There are two types of initial investigatory steps, depending on the level of information or evidence available to the FCA when initiating an investigation.

• Ordinary investigation – if the FCA does not have enough information to initiate a dawn raid, it will launch an “ordinary investigation” (enquête simple) under Article L. 450-3 FCC. These investigations rely primarily on requests for information and on-site visits during which agents ask for documents and information. Co-operation is mandatory but agents cannot search and seize documents. If a company subject to an ordinary investigation fails to respond to a request for information, refuses, or willingly provides an incorrect response, the FCA can impose a penalty as it did in the Brenntag case, imposing a fine of EUR30 million (decision No 17-D-27 of 21 December 2017).
• Coercive investigation – in cartel cases, when sufficient grounds have been collected to obtain a judicial warrant, the FCA prefers to use the coercive tools provided by Article L. 450-4 FCC (inspection under judicial warrant or enquête lourde). This article allows authorised FCA agents to investigate all premises and seize documents, provided that a judicial warrant has been granted in advance. In practice, the investigations begin with a dawn raid and continue via requests for information.

The FCA continues the investigations as long as required by the nature and facts of the case, as there is no time limit for each investigatory step (see 1.5 Limitation Periods).

Procedure Before the DGCCRF

Individuals or companies may also ask the DGCCRF to investigate anti-competitive behaviour. To do so, individuals can use the online contact form on their website, call their national service, send a registered letter, visit a local Departmental Directorate for Consumer Protection, or seek assistance from a consumer association for case preparation and representation.

As mentioned in 1.2 Public Enforcement Agencies and Scope of Liabilities, Penalties and Awards, the DGCCRF’s scope of action is far more limited, but it can send requests for information, organise on-site visits under Article L. 450-3 FCC and carry out inspections with a judicial warrant under Article L. 450-4 FCC.

Dawn raids or surprise visits are the primary methods used to gather evidence of cartels. Extensive case law has built up, balancing the need for efficient competition investigations with the necessity of safeguarding the fundamental rights of raided companies and individuals.

Pursuant to Article L. 450-4 FCC, dawn raids must be authorised by a judge following a request by the Minister for the Economy or the General Rapporteur of the FCA (the latter is the most frequent scenario in cartel cases) based on preliminary evidence (indices). In practice, the evidence required to obtain a warrant from the judge is often provided through leniency applications. The DGCCRF is also empowered to conduct dawn raids and shall liaise with the Investigation Services of the FCA in that respect.

During dawn raids, companies are allowed legal counsel (Article L. 450-4 FCC) and companies normally make use of this opportunity. The role of counsel is set out in 2.4 Role of Counsel.

Note that inspections of private homes are also possible, when authorised by the judicial warrant and are carried out more frequently in France that in some other European jurisdictions.

Visits without judicial warrant are also possible in France (Article L. 450-3 FCC) and mandatory but only in business premises and agents are not authorised to search – only to ask for documents and information to be provided.

Article 56 of the Code of Criminal Procedure also provides the possibility of carrying out criminal searches (perquisitions). Such investigations are carried out by officers of the judicial police, under the authority of an investigating judge to conduct a judicial inquiry. Agents from the FCA can be called to assist in such criminal searches.

Obligation to Provide the Requested Information During a Dawn Raid

Companies and their employees must provide the FCA with all the information requested in paper or electronic form unless narrow exemptions apply (see below). In practice, FCA agents search hard copy documents and electronic data in parallel, in the offices of employees allegedly involved in the cartel behaviour. Particular priority is increasingly given to electronic searches on key employees’ computers, including professional and sometimes personal mailboxes, as well as their phones (both professional and private), including social media accounts.

No Obligation to Respond to Interviews on the Substance

The right not to incriminate does not allow a person to block the FCA from accessing incriminating documents. Companies are obliged to hand such documents over to the agents during the inspection, or to indicate where such documents are located. On the other hand, FCA agents cannot conduct interviews which raise targeted questions on the suspected infringement, as this would violate the right not to self-incriminate. This was made clear in the Charles Faraud case (Paris Court of Appeal, No 15/21316, 28 June 2017).

Procedural Rights of Raided Companies

During dawn raids, several fundamental rights must be respected.

Notably, the right to privacy and the right to the inviolability of the home are ensured by a dual control on the necessity and proportionality of the dawn raid. According to the Court of Cassation, the intervention of the judge to authorise the visit and the ex-post appeals guarantees the effectiveness of the rights of companies. The same rules apply for inspections in private homes, with an additional requirement: the search and seizure order must expressly state why documents are likely to be found there.

In addition, the right to defence and the right to a fair trial must be upheld. From these rights derives the right to the assistance of a lawyer as soon as the search warrant is served.

However, it is important to note that not all defence rights apply at the preliminary investigation stage, and the Court of Cassation has ruled that compliance with the adversarial principle is not required during the inspection stage (see Cass. Crim., L’Oréal, No 11-80.127, 7 March 2012).

Obstruction and Refusals to Co-operate

Obstruction by undertakings or associations of undertakings

Obstructing the investigation such as by giving incorrect information, communicating incomplete or altered documents may lead to a financial penalty of up to 1% of the worldwide turnover of the undertaking (Article L.464-2 FCC).

The FCA has already imposed hefty fines for obstruction of its investigations. For example, it imposed a EUR30 million fine in its 2017 Brenntag decision (No 17-D-27 of 21 December 2017), and a EUR900,000 fine its 2019 Akka Technologies decision (No 19-D-09 of 22 May 2019).

Obstruction by individuals

Contempt of officers, hiding or destroying documents or breaking of seals during dawn raids might be penalised as obstruction offences by fines of up to EUR300,000 and imprisonment for up to two years (Articles L. 450-8 and L. 450-9 FCC).

Copies of Documents Seized and Minutes

It is possible for raided companies to ask to see and take copies of documents taken during a raid. It is imperative to insist that several copies are made of the documents to be taken, before they are sealed.

Raided companies and interviewees must also receive the dawn raid’s recorded minutes and should not hesitate to ask for amendments via their counsel. Articles L.450-2 and R. 450-1 FCC state that the minutes must be signed by the officer and the person concerned by the investigation. A copy of the minutes must be given to the latter.

Limitations of Powers

Inspectors usually copy entire email boxes (considered as one single file), which means that many out-of-scope documents and emails are seized. Although agents are not in principle allowed to take documents unrelated to the practices in question, inspection warrants are frequently drafted in broad terms, so that the scope limitation may be hard to enforce. If there is a disagreement over a document during the course of a raid, the company may request that the said document be set aside for discussion with counsel.

The case law also recognises the possibility to implement the provisionally closed seals procedure (scellé fermé provisoire) in case the documents contain legally privileged data. This procedure allows for large batches of documents including email boxes, which contain documents covered by legal privilege, to be sealed temporarily. The seal cannot be opened until the legally privileged documents can be removed.

Legal privilege is limited to correspondence between the client and its external lawyer (it does not so far apply to in-house lawyers). Legally privileged documents cannot be reviewed in detail, although FCA agents may still be able to take a cursory look to the documents. Additionally, a company cannot refuse to present a document to the agents on the grounds that it contains business secrets – they are protected later on in the procedure.

There is no obligation to retain business documents under French law once an investigation is opened by the FCA.

Businesses are nonetheless subject to a general obligation to retain “accounting documents” and “supporting documents” (eg, invoices or delivery notes) for ten years (Article L. 123-22 FCC). They must also retain commercial contracts between traders and between traders and non-traders for five years (Article L. 110-4 FCC).

Right to Defence Counsel

Companies and employees concerned have the right to counsel (legal representation) in competition investigations, including during inspections with or without judicial warrant.

Role of Counsel During Dawn Raids

Company counsel may assist the company during dawn raids and interviews which may be carried out during this time.

Officers and employees most directly concerned may also decide to instruct a personal counsel – different from the company counsel (especially when the investigation may have criminal implications) – but this is not obligatory. 

Counsel’s role during the raid often focuses on ensuring that procedural requirements are complied with – eg, they should ensure that the right not to self-incriminate is not infringed, that FCA’s agents do not ask targeted questions that are out of scope, documents are properly sealed and that the minutes are properly recorded.

Initial Steps Taken by Defence Counsel

Businesses should establish a comprehensive policy to be implemented in the event of an unannounced on-site inspection. This policy should include detailed procedures and protocols to ensure an organised response. For example, reception staff should be equipped with a list of contact details for internal senior management, IT personnel, in-house counsel, and external legal advisers.

Pursuant to Article L. 463-1 FCC, the FCA may establish anti-competitive practices using any form of proof. If direct evidence cannot be provided, the FCA may also prove anti-competitive conduct, including cartels, by a “body of serious, specific and concordant evidence”. In practice, the FCA often relies on this latter concept to prove cartel practices. 

The FCA employs several methods to obtain documentary evidence or testimonies in the course of investigating alleged cartel behaviour:

• documentary evidence is mainly obtained through competition inspections, conducted with or without a judicial warrant (see 2.1 Initial Investigatory Steps);
• the FCA’s agents may request information and documents in writing, pursuant to Article L. 450-3 FCC;
• the FCA’s agents may also conduct interviews with employees or management.

A company or individual located in France is obliged to produce documents or other evidence that is accessible from the inspected premises, even if it is located in another jurisdiction. This typically concerns electronic documents.

According to a judgment of the Paris Court of Appeal dated 18 November 2015, No 55/02015 (in the field of taxation), documents may be seized from the computers of the inspected premises that allow access to distant servers such as cloud storage, even if those servers are located abroad.

Two decisions of France’s highest civil court (Cour de cassation, Ass. plén., 16 December 2022, No 21-23.685 and No 21-23.719) confirmed that agents of the French Financial Markets Authority may seize documents that are within the scope of the subject matter of the investigation and that are found within the inspected premises or accessible from within the inspected premises, without it being necessary that the documents belong to or are at the disposal of the premises’ occupant.

Applied mutatis mutandis to competition inspections, those decisions and the judgment of the Paris Court of Appeal confirm that documents accessible from the inspected premises may be seized, regardless of the jurisdiction they are stored in.

While it is likely that the FCA will continue to issue requests for information to companies for the production of those documents located abroad but inaccessible from the inspected premises, it remains unclear how the FCA could enforce such requests.

Attorney-Client Privilege: Lawyers Registered with the Bar in France or Other Jurisdictions

In France, the principle of attorney-client privilege, known as secret professionnel, applies to communications between the company and external lawyers registered with a Bar. This privilege protects all communications between a client and their external lawyer in the context of legal advice or defence (Article 66-5 of Law No 71-1130 of 31 December 1971).

However, the French Court of Cassation has restricted the scope of this privilege in relation to inspections and seizures by the FCA or the DGCCRF to the sole exercise of the rights of the defence (Cass. crim., No 19-84.304, 25 November 2020), thus following the principles set by the European Court of Justice in the Akzo case in 2010 (case C-550/07 P, paragraphs 40 and 41).

Attorney-Client Privilege: Not (Yet) Applicable to In-House Counsel

Communications with in-house counsel are currently not recognised as privileged under French law, in line with the above-mentioned Akzo case. However, on 30 April 2024, the French General Assembly approved a draft law granting legal privilege to advice provided by in-house counsel (rather than to in-house counsel themselves). At the time of writing, the law still requires approval by the French Senate.

Privilege Against Self-Incrimination

The privilege against self-incrimination is also recognised under French law, allowing individuals to refuse to make declarations that could incriminate themselves during investigations, including cartel cases. However, this privilege does not allow individuals to refuse to provide factual information that is requested by enforcers as part of an investigation (see 2.2 Dawn Raids).

It may also be noted that in the Charles Faraud case (No 15/21316, 28 June 2017), the Paris Court of Appeal considered that the FCA was not necessarily required to inform the persons being questioned of their right to remain silent. Therefore, there is no obligation for the FCA to formally notify persons interviewed of their right to silence – at least when there is no potential criminal liability, otherwise such a warning is required (Article L 450-4 FCC).

In France, initial requests for information by the FCA are sometimes resisted by individuals and firms, particularly when these requests are perceived as overly broad or intrusive given the subject matter of the inspection.

However, in the Brenntag case (decision No 17-D-17 of 21 December 2017), the FCA imposed a fine of EUR30 million for obstruction on the basis that the company provided incomplete, inaccurate, and delayed information before refusing to communicate the requested information and material elements (including invoices and accounting extracts) despite several requests. The Constitutional Council considered that requests for communication of information and documents made on the basis of the provisions of Article L. 450-3 of the FCC are not, in themselves, acts that can be appealed (decision 2016-552, QPC, 8 July 2016, Société Brenntag). As a result, there is no possibility to challenge an RFI and non-compliance with the RFI exposes companies to receive fines.

Both targets of enforcement actions and third parties have rights to protect their confidential or proprietary information during the adversarial phase of the investigation. Articles L. 463-4 and L. 463-6 of the FCC elaborate upon the scope of this protection and add that this right is relevant both to the needs of the investigation, and the rights of the defence. Decisions taken by the General Rapporteur of the FCA to refuse to protect information a company believes should be considered as business secrets, or to lift the protection granted, may be the subject of an appeal before the Paris Court of Appeal (Article L. 464-8-1 FCC).

Except in cases where the disclosure or consultation of such documents is necessary for the exercise of the rights of defence of a defendant, the General Rapporteur of the FCA can refuse to disclose documents over which confidentiality has been successfully claimed, or even consultation of such documents/certain elements contained therein.

Article L. 463-6 FCC states that similar protections are available to third parties.

Defence counsel can intervene at different stages of the cartel investigation. Key stages include:

• during the competition inspection – see 2.4 Role of Counsel;
• during the written proceedings especially with the response to the statement of objections and to the report – see 2.1 Initial Investigatory Steps; and
• during the oral hearing – where it is important to present the company’s defence on the investigation, possible infringements as well as on potential penalties and remedies.

There is a leniency regime in France, allowing undertakings, associations of undertakings and individuals to reveal to the FCA that they have been involved in anti-competitive practices. These regimes allow applicants to benefit from total or partial exemption from fines if the evidence they contribute helps to detect and or sanction a cartel. The regime is governed by Article L. 464-2 FCC. The FCA updated its procedural notice on its leniency programme in January 2024, with the aim of keeping encouraging companies to make use of the leniency procedure.

In principle, the undertaking that is the first to provide information enabling dawn raids to be carried out will be granted full immunity from fines. However, this may not be granted if the undertaking has taken steps to coerce others to participate or continue to participate in the cartel.

Companies may also not benefit from full immunity if they do not fully co-operate with the FCA during the procedure. For instance, in the “Ham cartel” case (No 20-D-09 of 16 July 2020), the FCA noted that the first leniency applicant failed in its duty to co-operate by not informing the FCA of a cartel meeting in which one of its employees had participated, thus denying it the benefit of full immunity.

Undertakings that are not eligible for full immunity may receive partial immunity from fines (reduction of up to 50%) if they provide the FCA with information on the existence of the practice and that represents significant added value; eg, written information contemporaneous with the practices in question is of greater value than information established subsequently.

By way of example, in September 2023, the FCA fined six companies for anti-competitive agreements in calls for tender, but granted the benefit of the leniency procedure to one undertaking which received full exemption from financial penalties (decision No 23-D-08 of 7 September 2023).

It is also possible for companies to settle the dispute with the FCA (Article L. 464-2 FCC) or the Minister of Economy (Article L. 464-9 FCC). Settlements may take place once the investigation has been initiated and the company applying for the settlement “admits” the anti-competitive behaviour, rather than providing evidence to the enforcer. It is possible to benefit from both the leniency and settlement procedures in the same case.

Aside from the leniency program outlined in 2.11 Leniency and/or Immunity Regime, there is no specific amnesty policy concerning the prosecution of cartel behaviour in France.

Note that a mechanism (transaction pénale) allows the DGCCRF to settle the infringement via the payment of a sum of money, with the agreement of the public prosecutor and within a shorter period of time than for criminal proceedings.

Both Article L. 450-3 (ordinary investigations) and L. 450-4 FCC (coercive investigations) enable the FCA to seek information directly from company employees as part of its investigation into cartel activities even though the subject of a cartel investigation before the FCA is always an “undertaking” within the meaning of Article 101(1) TFEU, as reflected in Article L. 420-1 FCC.

As mentioned in 2.1 Initial Investigatory Steps, the FCA can interview employees, request information, conduct oral hearings and seize or search evidence in employees’ belongings including personal mailboxes and phones. 

Employees have the right to have legal counsel present during interviews (see 2.4 Role of Counsel). They also have right to remain silent and the right not to self-incriminate (see 2.7 Attorney-Client Privilege).

Pursuant to Articles L. 450-3 and L. 450-4 FCC, the FCA can directly seek documentary information from the companies under suspicion or other third parties involved in potential anti-competitive practices, via formal requests for information and unannounced inspections. However, dawn raids rarely target companies that have not participated in the cartel (see 3.1 Obtaining Information Directly From Employees). 

The FCA can seek information from companies or individuals located outside its jurisdiction, particularly when investigating activities that affect competition within France. This cross-border information gathering is facilitated through co-operation under international agreements and European Union mechanisms (see 1.7 Principles of Comity).

Since the 2008 Loi de Modernisation de l’Economie Act, the FCA has the main responsibility for competition regulation in France. However, the DGCCRF retains some powers, in particular in the field of investigations.

In practice, the two work in close collaboration, with the DGCCRF providing the FCA with feedback on the evidence and practices it detects thanks to its local presence in each of the French départements.

The FCA also works regularly with sectoral regulators. In some instances, the FCC provides for mandatory consultations between them.

The FCA actively collaborates with the European Commission and other national competition authorities, especially in the context of the ECN (see 1.7 Principles of Comity). This tends to focus on co-ordinated inspections (see 2.7 Attorney-Client Privilege) and/or the exchange of information and evidence, pursuant to Article 12(1) of Regulation 1/2003.

The proportion of “multi-jurisdictional cases” is not high, as these types of cases are normally dealt with by the European Commission. There are examples of bilateral co-operation, for example the “flour” case (decision No 12-D-09 of 13 March 2012) – a cartel of German and French millers aimed at limiting imports of flour between France and Germany. The FCA had co-operated with the German competition authority (Bundeskartellamt). It is also important to note that the FCA will assist the European Commission when it carries out dawn raids in France.

Criminal cases, including those related to anti-competitive conduct like cartels, follow a different procedure.

In French criminal procedure, criminal cases may be initiated on the basis of the complaint lodged by the victim (civil action), or by the public prosecutor.

Regarding competition law, pursuant to Article L. 462-6 FCC, the initiation of a criminal case typically involves the public prosecutor’s office receiving civil action and information from victims. The FCA can also inform the public prosecutor if criminal conduct is suspected and in fact must do so if the alleged conduct is likely to constitute a violation of criminal law.

The public prosecutor then examines the evidence and may decide to launch a judicial investigation – ie, appoint an investigating judge, who benefits from wide investigative powers. This is known as an information judiciaire.

To date, criminal convictions remain rare in the antitrust field except in relation to bid-rigging.

In France, most civil competition cases are heard by commercial courts (see 5.1 Private Right of Action). Only eight civil and commercial courts are territorially competent to rule on competition disputes and all appeals are centralised before the Paris court of appeals (Article D. 442-2 of the FCC). A further appeal, limited to questions of law, is possible before the French Court of Cassation.

Evidence is directly assessed by the judge ruling on the case. Evidence can be submitted by any means (written proof, testimonies, etc), but must have been gathered fairly.

The pre-trial judge ensures that the parties exchange documents and submissions. Parties can access all the information in the case file.

Enforcement actions involving cartels are typically brought against multiple parties in a single proceeding when the parties are suspected of participating in the same anti-competitive agreement or practice. Indeed, several cases can sometimes be “joined” and ruled on by a single decision (Article R. 463-3 FCC).

The burden of proof is incumbent upon the FCA in proceedings which it initiates. When proceedings are initiated before courts, the burden of proof falls upon the party alleging a breach of anti-cartel rules. 

Before courts (in the context of private enforcement cases), the FCA acts as both the finder of fact and the applier of the law on which the claimant then relies. The claimant will, however, have to go on and prove causation and damage.

In criminal proceedings, a judge usually serves as the finder of fact, determining the facts based on evidence. Judges are then responsible for applying the law to these facts to render a verdict and decide on the sentence, ensuring that both fact-finding and legal interpretations are handled in line with judicial procedures (see 3.6 Procedure for Issuing Complaints/Indictments in Criminal Cases).

Pursuant to Article L. 463-1 FCC, the FCA may establish anti-competitive practices using any form of proof. 

Evidence Obtained in Criminal Proceedings

Investigating judges and criminal courts may provide the FCA, at its request, with the minutes of investigation reports or other criminal investigation documents that are directly related to the facts before the FCA (Article L. 463-5 FCC).

Evidence From Other Jurisdictions

For the purpose of enforcing EU competition rules towards companies and trade associations, National Competition Authorities and the European Commission have the power under Regulation No 1/2003 to provide one another with, and use in evidence any matter of fact or of law, including confidential information.

Evidence from other jurisdictions can be used in French proceedings, subject to international agreements and EU regulations concerning mutual legal assistance and the exchange of information (see 3.5 Co-operation With Foreign Enforcement Agencies).

Limitation: General Principle of Loyalty When Establishing Proof

One of the main limitations of the use of evidence is the principle of loyalty when establishing proof (see, eg, decision of the Conseil de la concurrence, No 01-D-24, 4 May 2001), which for example guarantees the right not to self-incriminate or confess guilt.

There is no specific “rule of evidence” under French law with the principle of freedom of proof applying. Courts do, however, control the admissibility of evidence and its probative value. Evidence must, at least, have been legally obtained and be credible.

In proceedings regarding cartels, the FCA and the courts may use experts to provide technical or economic expertise to support legal arguments and decisions.

Parties can also submit the opinion of their own experts, typically economists, to assess market dynamics, pricing behaviour, and the competitive effects of alleged cartel conduct including quantifying alleged harm.

See 2.7 Attorney-Client Privilege.

Multiple/Simultaneous Enforcement Proceedings: French Competition Law and French Criminal Law

Anti-competitive conduct may trigger administrative penalties for companies by the FCA, criminal prosecution for individuals, as well as damages proceedings.

Multiple/Simultaneous Enforcement Proceedings: Competition Proceedings in Various Member States

According to the Commission Notice on co-operation within the Network of Competition Authorities (2004/C 101/03), several national competition authorities are able to act in parallel for the application of Article 101 and 102 TFEU. However, these multiple/simultaneous enforcement procedures are subject to the principle ne bis in idem. Companies cannot be punished more than once for the same practice. The ECN is often a very useful forum for resolving these kinds of issues.

The FCA has direct authority to impose penalties up to 10% of global annual turnover for companies involved in cartel activities, according to Article L. 464-2 FCC (see 1.2 Public Enforcement Agencies and Scope of Liabilities, Penalties and Awards). The Paris Court of Appeal has full jurisdiction to consider appeals of FCA decisions, including the amount of the penalties.

There is a procedure for settlement under French competition rules.

Companies can enter into a settlement with the FCA during the investigation phase before the case is formally decided (Article L. 464-2(III) FCC).

The settlement procedure is initiated by a company expressing its willingness to settle after the statement of objections has been issued. The company agrees to acknowledge its involvement in the anti-competitive behaviour and the General Rapporteur submits a proposal for a settlement which sets the minimum and maximum amount of the envisaged fine. This procedure is at the discretion of the General Rapporteur. It is possible for a company to apply for leniency and benefit from a settlement after the issuance of the statement of objections.

The FCA formalises the settlement through a decision. The amount of the fine may be appealed, but will remain within the fines’ range negotiated with the FCA (see judgment of the Paris Court of Appeal, 13 June 2019, No 18/20229).

Additionally, the Minister of Economy has the power to issue injunctions and settlements to settle local anti-competitive practices since the entry into force of the Order of 13 November 2008 modernising the regulation of competition. This power is implemented under the co-ordination of the DGCCRF. The scheme has become the main tool in the fight against local anti-competitive practices. In 2023, this power was used in 21 cases.

If liability or responsibility for anti-competitive behaviour is established in French competition law, there can be various collateral effects.

• According to Article L.420-6 of the FCC, individuals involved in a cartel infringement can also be found criminally liable and face imprisonment and fines. The FCA will inform the services of the public prosecutor (see 3.6 Procedure for Issuing Complaints/Indictments in Criminal Cases) of any cartel decision, except for individual employees of leniency applicants.
• Follow-on actions for damages may also be initiated under Articles L.481-1 to L.483-11 of the FCC (see 1.3 Private Challenges to Cartel Behaviour/Effects). This is true even if the infringer benefited from the leniency and settlement procedures. In this respect, pursuant to Article 9(2) of the “Damages” Directive 2014/104/EU, a final decision on an infringement of competition law taken in one member state may be used before the courts of another.
• Exclusion from the participation in public procurement processes can be pronounced permanently or for a period of five years at most, when the legal person committed a crime or offence (Article 131-39 of the French Criminal Code).

If an individual is convicted of participating in, conceiving of, or organising anti-competitive behaviour, Article L.420-6 FCC states that this person can be fined up to EUR75,000 decided by the court, and be sentenced to a maximum of four years imprisonment.

Criminal sanctions are rarely used outside the scope of bid-rigging practices and multiple infringements (eg, anti-competitive practices and corruption).

There are civil penalties applicable to anti-competitive conduct under French law. Nonetheless, any individual or entity which has suffered damage stemming from such conduct is entitled to be compensated for it. As such, French law provides for the possibility to grant compensatory damages for anti-competitive conduct; ie, damages paid to the claimant for the loss suffered due to the defendant’s anti-competitive conduct. French courts do not grant punitive damages in civil cases.

For additional information on penalties, see 1.2 Public Enforcement Agencies and Scope of Liabilities, Penalties and Awards.

Compliance programmes are not taken into account to determine the level of penalties imposed upon a company. In 2022, the FCA published a working document on compliance programmes and supports the efforts of companies in that space, but does not grant fine reductions on that basis anymore.

There is no mandatory consumer redress regime for anti-competitive conduct in France.

The parties or the Minister of Economy may appeal a decision of the FCA up to one month after it has been issued. Article L. 464-8 FCC states that appeals are lodged before the Paris Court of Appeal, which is competent to review the case both in fact and in law.

Appeal decision can be appealed themselves before the French Court of Cassation (Article L. 464-8 FCC). While the Court of Appeal conducts a full jurisdictional review, the Court of Cassation’s jurisdictional review is limited to points of law.

Right of Action and Standing

Private parties can sue for damages resulting from anti-competitive conduct before civil courts under Order No 2017-303 and Decree No 2017-305.

The rules regarding actions for damages following anti-competitive behaviour are now laid out at Articles L. 481-1 to L. 483-11 FCC (see 1.3 Private Challenges to Cartel Behaviour/Effects).

The scope of application of private actions is quite large: in practice, anyone who considers they have been harmed as a result of a competition law infringement has standing, whether it is a direct or indirect victim of the litigious conduct.

Competent Jurisdictions

Private actions are handled before French civil courts (Tribunal judiciaire), commercial courts (Tribunal de Commerce), or administrative courts (Tribunal administratif).

Civil courts are competent when the dispute involves consumers, whilst commercial courts are competent for disputes involving commercial parties. Administrative courts are competent if at least one of the parties is a public entity.

Appeals can be lodged before the Paris Court of Appeal (Article L. 420-7 FCC).

Relief

The relief granted in private actions is different from those which are applicable to governmental proceedings. Indeed, damages cannot be granted by a public authority; only fines and interlocutory measures, such as an injunction to halt the practice, can be ordered by competition authorities. 

In France, relief in private actions is granted by way of compensatory damages to the plaintiff (see above). This encompasses:

• the loss arising from the overcharge, unless it was passed on to customers, or from a reduced price paid by the author of the anti-competitive conduct;
• the loss stemming, in particular, from the decline in sales volume due to a partial or complete transfer of the overcharge;
• the loss of potential opportunity; or
• moral damage.

Consumer victims of anti-competitive practices which have been found as an infringement by a competition authority or judgment may be represented in court by a consumer association (Article L. 623-1 FCC).

Such group actions are subject to a five-year limitation period following the final decision establishing the violation of competition law.

A proposed reform takes several steps to facilitate more use class actions, in the context of the transposition of the European Directive 2020/1828 (see 1.3 Private Challenges to Cartel Behaviour/Effects). The text is currently under discussion in parliament at the time of writing, but should be adopted soon, as the original transposition date (25 December 2022) has already passed.

The new system established by the implementation of the Damages Directive in France introduces two assumptions to transfer the burden of proof from the victim to the defendant for both direct and indirect purchasers (Article L. 481-4 FCC). In the case of direct purchasers, the defendant must prove the passing on of the overcharge, while for indirect purchasers, it must demonstrate that the direct purchaser did not pass on the overcharge to avoid liability.

In practice, recent case law indicates that French civil courts are hesitant to apply these assumptions too quickly.

The role of economic experts is significant in these matters, helping the judge form an opinion on the existence of passing on and to resolve these cases, although exactly how this kind of evidence is heard, varies according to the court.

Final decisions from the FCA are important evidence in private civil litigation as they constitute evidence of an anti-competitive practice (Article L. 481-2 FCC).

Article 6 of the Damages Directive provides detailed indication as to the possible disclosure of different categories of evidence for the purpose of actions for damages.

These rules have been transposed in French law in the FCC (see Articles L. 483-4 and following of the FCC).

The timeframe for private litigation differs significantly depending on the court’s workload and when the case is submitted. Proceedings can take from five to up to ten years. Perhaps unsurprisingly given this, a significant proportion of follow-on actions in antitrust cases are settled (although public data on this is scarce).

There are strict rules in France around how lawyers representing claimants can be compensated: they cannot be remunerated solely through contingency fees. The losing party might have to cover some of the winning party’s legal costs (Article 700 of the French Code of Civil Procedure), but in practice, this is likely to represent only a small proportion of the fees a claimant needs to pay.

Unsuccessful claimants are obliged to pay defence costs and attorneys’ fees to the opposing party. This practice is governed by Article 700 of the French Code of Civil Procedure (See 5.6 Compensation of Legal Representatives). However, when repayment of defence costs is ordered, this typically amounts to a small portion of the fees actually incurred.

Cartel damages cases brought before civil courts can be appealed before the Court of Appeal, and upon further appeal before the Court of Cassation. This was recently the case in the 2024 Cegedim/Euris case (Cour de cassation, No 22-11.648, 20 March 2024).

There is no other information that is relevant to an understanding of the process, scope and adjudication of claims involving alleged cartel conduct in France.

The FCA has published various guides and documents which are not directly related to cartel conduct, but are nevertheless applicable to this area. These aim to help consumers and businesses understand competition laws and the FCA’s enforcement practices from a practical perspective.

Key resources include:

• a procedural notice on the method for determining fines;
• a procedural notice on the FCA’s leniency programme;
• a guide on “Better understanding competition rules” for SMEs; and
• a study on the application of competition law to professional bodies.

These documents and others can be accessed on the FCA’s website.