Receive a decision from theFrench Competition Authority which imposes financial penalties, orders you to cease certain practices (injunctions), or even rejects your own complaint, is rarely good news for a company. It is a serious situation that can have significant financial and reputational impacts. These decisions, which result from the application of the fundamental principles of competition lawHowever, this is not necessarily the end of the process. French law provides for specific appeal procedures to challenge the decisions of the Autorité. Understanding these mechanisms, the strict deadlines that govern them and the reasonable chances of success is crucial to defending your interests in the best possible way. This article guides you through the available options for challenging decisions.
Which AMF decisions can be challenged?
Not all decisions issued by the Autorité are subject to appeal. The French Commercial Code (mainly article L. 464-8) specifically lists the decisions that give rise to a right of appeal to the Paris Court of Appeal. These include
- Decisions on the merits : Those that find an anti-competitive practice and impose financial penalties, injunctions to do or not to do something (for example, amend a contract, cease a pricing practice), or order the publication of the decision.
- Decisions closing cases without penalties: Those that declare a complaint inadmissible (for lack of interest, statute of limitations, etc.), reject it for lack of evidence, or dismiss the case. A complainant company can thus contest a dismissal that it considers unfounded.
- Decisions accepting commitments: A third party company (competitor, customer) could, if it has an interest, challenge a decision by which the Authority accepts commitments proposed by another company, if it considers these commitments to be insufficient.
- Decisions on precautionary measures : Decisions ordering (or refusing to order) emergency measures to put an end to a serious and immediate infringement of competition may be the subject of a specific and rapid appeal.
- Decisions on non-compliance with injunctions or undertakings : If the Autorité imposes a penalty on a company for failing to comply with a previous injunction or commitments, this new decision may also be appealed.
- Rulings on business secrecy : More specifically, decisions by the rapporteur general refusing to grant business confidentiality protection to certain documents, or lifting such protection, may be appealed immediately and separately to the First President of the Court of Appeal (Art. L. 464-8-1 C. com.).
On the other hand, simple procedural measures (such as the decision to open an investigation, to join or separate cases, to appoint an expert, etc.) or preparatory acts (such as the statement of objections itself) are generally not subject to immediate appeal. However, their legality may be challenged, if necessary, during the appeal against the final decision on the merits.
The main appeal: appeal to the Paris Court of Appeal
The main means of appeal against an AMF decision is to the Paris Court of Appeal.
- Exclusive competence : This is an important point: only the Paris Court of Appeal has jurisdiction to hear these appeals. This centralisation is intended to ensure that judges are specialised and that case law in competition matters is consistent.
- Who can appeal? The appeal is open to the "parties involved" before the AMF, i.e. mainly the companies or bodies affected by the decision (whether it imposes a penalty or rejects a referral). The Minister for Economic Affairs may also appeal against any decision of the Authority. The other parties who were present before the Authority (for example, the original complainant if the appeal is lodged by the sanctioned company) may intervene in the appeal proceedings to support the submissions of one or other of the main parties. Following a recent legislative change, the Autorité de la concurrence itself is now considered a party to the appeal proceedings and can therefore defend its own decision.
- Strict deadlines: The appeals procedure is governed by strict deadlines that must be adhered to or the appeal will be inadmissible (lapsing).
- A period of one month from the date of notification of the Authority's decision to file the application. statement of appeal at the Court Registry.
- A delay of two months from the date of the same notification to lodge with the court registry the written submissions containing a detailed statement of the grounds (arguments of fact and law) justifying the appeal, together with a list and copies of the supporting documents. Within the same time limit, the other parties (including the Authority and the Minister) must also be notified of these pleadings and exhibits and must provide proof of them to the court registry.
- A formal procedure : The appeal is mainly conducted in writing. The statement of appeal must be lodged physically (or via electronic communication tools with the courts where applicable) at the court registry. Arguments are then exchanged in written submissions (observations). An oral hearing is held at the end of the procedure for the lawyers' submissions. The procedure is governed by specific provisions of the Commercial Code (articles R. 464-10 et seq.), which sometimes depart from the usual rules of the Code of Civil Procedure.
- Complete control: The Paris Court of Appeal exercises control integer on the Authority's decision. It re-examines the case in fact and in law. It can :
- Confirm the Authority's decision.
- L'cancel if it considers the decision to be unlawful (procedural error, incorrect application of the law, etc.).
- La reformThe Court also has the power to impose a penalty, i.e. to modify it: for example, to annul some of the objections but maintain others, to reduce (or, more rarely, increase) the amount of a penalty, to modify the content of an injunction, etc. The Court also has the power to impose a fine, i.e. to modify the amount of the penalty.evoke the case: if it quashes the decision on procedural grounds, it may choose to hear the case itself on the merits rather than referring it back to the Authority.
Suspending enforcement: applying for a stay of execution
A fundamental point to understand is that an appeal to the Paris Court of Appeal is not suspensive. This means that, even if you appeal, the Authority's decision must in principle be implemented immediately: fines are payable by the Treasury and injunctions must be complied with.
To mitigate the potentially devastating effects of immediate execution, there is an emergency procedure: the application for stay of execution.
- Objective: Obtain a temporary stay of execution of the Authority's decision, while the Court of Appeal rules on the appeal on the merits.
- Who should I contact? The application is submitted to the First President of the Paris Court of Appeal (or its delegate), via a specific and rapid procedure (summary proceedings).
- Very strict conditions: A stay of execution is not easily granted. It must be shown that immediate execution of the decision would result in "serious consequences". manifestly excessive consequences In other words, there is a "risk" for the company (for example, a proven risk of going out of business in the event of immediate payment of the fine, irremediable disorganisation of the commercial network following an injunction, etc.) OR "risks" (for example, a proven risk of going out of business in the event of immediate payment of the fine, irremediable disorganisation of the commercial network following an injunction, etc.). exceptionally serious developments "In most cases, this is not enough. Mere financial inconvenience or contesting the merits of the decision are generally not enough.
- Decision of the First President : The judge may grant a total or partial reprieve (for example, reprieve for only part of the fine, or for a specific injunction but not the others). Its decision is rapid but provisional, and does not prejudge the outcome of the appeal on the merits.
The last resort: appeal to the Court of Cassation
The ruling handed down by the Paris Court of Appeal may itself be the subject of a final appeal: the appeal to the Supreme Court.
- Against what decision? The appeal is against the judgment of the Court of Appeal, not against the Authority's initial decision.
- Who can lodge an appeal? The parties who were present before the Court of Appeal (companies, Minister, Autorité de la concurrence via its Chairman).
- Deadline : Once again, a strictone month from the date of notification of the Court of Appeal's judgment.
- Control limited to the law : This is the fundamental difference with an appeal. The Court of Cassation does not retry the case on the facts. Its role is solely to verify whether the Paris Court of Appeal has correctly interpreted and applied the rules of law. It does not re-examine the evidence or the assessment of the economic facts.
- Issue : The Court of Cassation may reject the appeal (the Court of Appeal's ruling becomes final) or quash the ruling (set it aside). In the event of cassation, the case is generally referred back to the Paris Court of Appeal (with a different composition) to be retried in the light of the points of law raised by the Court of Cassation.
Some strategic considerations
Appealing against a decision by the Autorité de la concurrence is a long, complex and costly process. It is essential to make a serious assessment of the chances of success before embarking on such a course of action, especially since alternatives to the traditional procedureThe use of other means, such as leniency or commitments, could have been explored beforehand. An appeal based on solid arguments may make it possible to obtain the annulment or reversal of an unfavourable decision. However, an appeal that is manifestly unfounded or dilatory could be considered abusive and potentially sanctioned by the Court (civil fine, damages). An in-depth legal analysis of the reasons for the Authority's decision and any procedural flaws or errors of law is essential.
A decision by the Autorité de la concurrence, even if it is unfavourable to you, is not necessarily an end in itself. There are remedies available, but implementing them requires rigour and expertise. If you are faced with such a decision, our firm can provide you with specialist legal advice to assess your options, the deadlines to be met and the arguments to be developed to defend your interests effectively before the Paris Court of Appeal and, if necessary, the Court of Cassation.
Sources
- French Commercial Code: articles L464-7 (appeals for precautionary measures), L464-8 (appeals for decisions on the merits), L464-8-1 (appeals for business confidentiality), L464-8-2 (appeals for notification of EU acts), R464-10 to R464-24 (appeals and stay procedures).
- Code of Civil Procedure: article 485 (summary proceedings for stay), article 559 (abusive appeal), article 561 (devolutive effect/evocation).
- Relevant case law from the Paris Court of Appeal and the Court of Cassation.
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