The French Competition Authority publishes a draft notice giving guidance on the method followed when setting antitrust fines
|The notice is intended to enhance the transparency of the process followed by the Authority when setting antitrust fines. It will also facilitate the discussion with the parties, during the run-up to the decision, on the main elements taken into account in order to set the fine. The method described in the draft enables the Authority to balance deterrence and proportionality, by setting the fine at a level which reflects the gravity of the offence and the economic harm that it is liable to cause, as well as the individual situation of the firm and, where applicable, of the group to which it belongs.|
Stakeholders are invited to comment on the draft notice
The Authority's initiative follows up on the good practices agreed upon by the European competition authorities in May 20081, as well as on a report published in September 2010 by an independent mission on antitrust fines2.
The consultation will be followed by a public roundtable, scheduled in Paris on March 30, 2010, in order to provide a further opportunity of discussing the draft.
Dedicated guidance will further enhance the transparency of the fine-setting process
The publication of guidance on antitrust fines is intended to foster transparency and to frame the discussion on the main elements taken into consideration in order to set the fine before a decision is taken by the Authority. The draft explains the method followed in practice by the Authority when applying the fining criteria set out by the French Code of Commerce3. It also recalls what are the main elements that can be taken into account, on a case-by-case basis, when setting the fine.
The draft, which builds on the guidelines followed by the Authority in its past decisions, is consistent with the best practices followed by other European competition authorities. This is line with the case-law of the European Court of Justice, which has held that the National Competition Authorities (NCAs), which are empowered to enforce European competition rules, must make sure that the fines imposed to that effect are consistent and effective4.
At the same time, the draft reflects the specificities of the French rules on antitrust fines. The main such specificity is that fines take into account the importance of the harm that an antitrust offence can cause to the broader economy as well as to consumers, including (but not limited to) an overcharge on the markets where it takes place.
In practice, the Authority starts by assessing the gravity of the offence and the importance of the economic harm caused thereby. On the basis of this assessment, it then sets a basic amount, which corresponds to a proportion of the value of the sales related to the infringement, in line with the practice of other competition authorities.
Due to the specificities of some bid-rigging cases, a different method is followed by the Authority in such cases.
The draft does not dwell on all the issues that can be taken into account during the fine-setting process. It safeguards the margin of flexibility needed to fit in all the specifics of each case, and guarantees that the fine is tailored to each individual situation.
1 Pecuniary sanctions imposed on undertakings for infringements of antitrust law, principles for convergence, guidance document published by the ECA (association of European competition authorities) in May 2008, pursuant to a project carried out by a working group co-chaired by the French and Italian competition authorities
For more detail, please consult :
The New Year's message also provided an opportunity of taking stock on the Authority's action in 2010. For more details, please consult: