Proceedings before the Competition Authority: how is a case launched?

The Autorité de la concurrence's involvement in the life of a company does not always begin with a complaint. surprise investigation. A procedure can also be triggered by the filing of a formal complaint from a competitor, supplier, customer or even a professional organisation. The Minister of the Economy may also refer a case to the Authority, just as the Authority may decide to act on its own initiative. Understanding these different starting points is essential, whether you are planning to denounce a practice that is harming you or your company is the target of a procedure. This article details who can refer a case to the Authority, how a case is initially examined and what are the imperative time rules (the famous statute of limitations) that govern its action, while also outlining the main steps to be taken. remedies and procedural alternatives.

Who can refer a case to the Competition Authority?

A number of players can call on the Autorité de la concurrence to examine potentially anti-competitive practices.

• The Minister for Economic Affairs : It has a general power to refer any practice that it suspects to be contrary to competition law. Such referrals may be based on the results of an investigation conducted by its own departments (the DGCCRF) or relate to facts requiring investigation by the Authority itself.
• Companies : Any company that considers itself to be the victim of an anti-competitive practice (cartel, abuse of a dominant position, abuse of economic dependence, etc.) or that is aware of facts likely to distort competition in a market in which it operates may lodge a formal complaint with the Autorité. This is the most common route for competition-related commercial disputes.
• Other organisations : The law also recognises the right of various entities to refer matters to the Authority in order to defend the interests for which they are responsible. These include :
  • Local authorities (communes, départements, regions).
  • Professional and trade union organisations.
  • Approved consumer organisations.
  • Consular chambers (chambers of commerce and industry, chambers of trade and crafts, chambers of agriculture).  
  • Other sector-specific independent administrative authorities, such as the Autorité de régulation des communications électroniques (ARCEP), the Autorité de régulation des transports (ART), the Commission de régulation de l'énergie (CRE), and the Autorité de régulation de la communication audiovisuelle et numérique (ARCOM).
• The Authority itself (ex officio referral) : The Autorité de la concurrence is not dependent on an external complaint in order to act. It can decide to take action on its own initiative on the basis of information it gathers through its sector watch, following informally transmitted clues, or as an extension of previous cases. This ability to take action on its own initiative enables it to intervene in issues that it deems to be a priority for the economy, even in the absence of an identified complainant. It can also take action on its own initiative to order emergency measures (precautionary measures) if a practice appears to be causing serious and immediate harm to competition.

How does a referral work?

Referrals to the AMF must comply with certain formalities. It must be sent in writing, either by registered letter with acknowledgement of receipt, or by hand-delivery to the AMF's head office, or via a secure electronic platform set up by the AMF.

In terms of substance, the complaint must be sufficiently precise. It must clearly set out the facts complained of, identify the suspected companies (if possible), describe the operation of the market concerned and explain how the practices complained of could constitute an infringement of the competition rules. Ideally, the complaint should be accompanied by evidence to support the allegations (correspondence, contracts, witness statements, studies, etc.). If the case file is deemed incomplete, the AMF departments may ask the complainant to provide additional information within a period generally set at two months.

Initial examination of the referral by the Authority

Once a case is referred to it, the AMF does not automatically launch an in-depth investigation. It carries out a preliminary examination to determine whether the case merits prosecution. This is an essential screening phase.

An important principle guides this examination: the referral in rem. This means that the Authority is not strictly bound by the terms of the complaint. It deals with facts or practices on a given market. It may therefore extend its investigation to other facts, other companies, or adopt a different legal classification from that proposed by the complainant, provided that this remains linked to the competitive operation of the market initially targeted by the referral.

The Authority may decide to close the case at this initial stage on several grounds, listed in Article L. 462-8 of the French Commercial Code. Rejection or inadmissibility decisions must be substantiated.

• Inadmissibility :
  • Lack of interest or standing : The complainant does not have the right to bring a case before the Authority. For example, a natural person who no longer carries on an economic activity, or an association whose corporate purpose does not include the defence of the interests concerned. Interest in taking action is assessed at the time of referral.
  • Incompetence of the Authority : The facts complained of do not fall within the scope of competition law (for example, a simple unfair competition dispute, a consumer law problem, etc.).
  • Statute of limitations : The practices are too old and the Authority's action is out of date. We will come back to this in detail.
  • Facts already dealt with (non bis in idem) : The same case has already been decided by the Authority itself, or dealt with by another competition authority within the European network.
• Rejection :
  • Lack of sufficient evidence : The referral is based on mere allegations without any credible evidence. The AMF considers that there is not enough evidence to justify an investigation. It is not a question of proving the infringement at this stage, but of establishing that the facts complained of are sufficiently plausible.
  • No priority (timeliness of proceedings) : This is a more recent option, inspired by European law. The AMF may decide not to act on a referral, even a potentially well-founded one, if it considers that the case is not a priority in terms of its resources and potential impact on the economy. This allows it to concentrate its efforts on the most significant cases.
  • Possible treatment by the Minister (Micro-PAC) : If the case concerns small-scale practices covered by the Minister's specific injunction and settlement procedure (which we will discuss in another article), the AMF may reject the referral and invite the complainant to contact the DGCCRF.

These initial classification decisions may be appealed to the Paris Court of Appeal.

Time counts: the statute of limitations on anti-competitive practices

Time is a decisive factor in competition law. The AMF cannot pursue long-standing practices indefinitely. The action is governed by strict limitation rules, set out in Article L. 462-7 of the French Commercial Code. Failure to take these into account may render a referral inadmissible from the outset.

• Key deadlines :
  • The ordinary limitation period is five years. This period replaced a previous three-year period in 2004 and applies immediately to cases in progress at that date.
  • There is a time limit absolute deadline of ten years. Whatever happens, the Authority can no longer rule (i.e. give its final decision) on a practice if more than ten years have elapsed since it was first introduced. termination. This rule, introduced in 2008, is not retroactive: it applies only to proceedings in which the Authority's decision was taken after it came into force.
• The starting point of the period : For so-called "instantaneous" infringements (for example, the signing of a one-off agreement), the limitation period runs from the day on which the practice was committed. For "continuous" infringements (such as a cartel that continues over time, or an abuse of a dominant position that is maintained), the limitation period only begins to run from the day the practice was committed. ceased. This is a fundamental point for long-term agreements.
• Interruption of the limitation period ("reset" of the 5-year period) : Certain acts have the effect of interrupting the five-year period and starting a new period of the same duration. The main interruptive acts are :
  • Any investigation or enquiry carried out by the AMF or the DGCCRF (request for information, hearing, official report, visit and seizure, etc.).
  • Referral to the Authority (by a company, the Minister or on its own initiative).
  • Notification of grievances, transmission of the rapporteur's report.
  • Certain procedural acts in criminal proceedings relating to the same facts.
  • Any investigation or proceedings conducted by the European Commission or another EU national competition authority concerning the same facts. It is important to note that due to the nature of in rem of the referral, an interruptive act concerning a company interrupts the limitation period with regard to all companies involved in the same practice.
• Suspension of the statute of limitations (temporary suspension of the 10-year time limit) : In certain specific situations, the ten-year time limit is suspended, i.e. it ceases to run temporarily. This is particularly the case during :
  • Appeals against the order authorising a search and seizure or against the conduct of these operations.
  • Appeals against the Authority's final decision have been lodged with the Paris Court of Appeal and the Court of Cassation.
  • Appeals concerning the protection of business secrecy to the First President of the Court of Appeal. The purpose of this suspension is to ensure that the exercise of remedies by companies does not automatically lead to the termination of the AMF's action.
• Consequences of prescription : If the facts are time-barred at the time of referral, the referral is inadmissible. If the statute of limitations has expired during the proceedings, the AMF must dismiss the case. It may no longer impose a sanction for these acts. However, facts that are time-barred may sometimes be mentioned in a decision to shed light on the context of more recent practices that are not time-barred.

Mastering these initial procedural rules is essential for assessing the chances of success of a referral or for organising your defence when you are the subject of proceedings.

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Whether you are considering bringing a case before the Autorité de la concurrence or are involved in proceedings, a rigorous analysis of the conditions for admissibility and limitation periods is an essential first step. Our firm can help you assist you in this process and advise you on the strategy to adopt. We look forward to hearing from you.

Sources

• French Commercial Code: articles L420-1 et seq. (anti-competitive practices), L462-5 (referral), L462-7 (statute of limitations), L462-8 (inadmissibility/rejection), L463-1 (general principles of procedure), L464-6 (dismissal), R463-1 (form of referral), R463-3 (joinder/dismissal), R463-9 (information other authorities), R464-7 (dismissal procedure), R464-8 (notification of decisions).
• Treaty on the Functioning of the European Union (TFEU): articles 101 and 102 (if mentioned).
• Relevant case law from the Autorité de la concurrence, the Cour d'appel de Paris and the Cour de cassation.