Analysis
14 July 2019

May 22 PACTE Law strengthens French Competition Authority investigative powers

Bastille Day Newsletter 2019 - Legislative, Regulatory & Policy Updates

 

The Action Plan for Enterprise Growth and Transformation, (the “ PACTE Law ”) empowers companies to innovate, transform, develop and create jobs 1.

Validated by the French Constitutional Council on May 16, 2019, it came into force on May 22 and intends “remove obstacles to companies’ growth at all stages of their development, from their creation to their transfer, including their financing” 2.

The PACTE law has been the subject of much criticism from lawyers and business leaders on account of its general lack of clarity 3 and more significantly the extension of the Competition Authority’s investigative powers 4.

New prerogatives to detect anti-competitive actions

The Competition Authority is a French independent administrative authority in charge of controlling and regulating anti-competition practices and investigating the efficiency of the market system. It is not a jurisdiction but has injunction and sanctioning powers as well as investigation prerogatives.

The entry into force of the PACTE Law has extended the powers of the Authority, by strengthening its investigative powers.

For the purpose of investigating and detecting infringements of competition law or anti-competitive practices, the Authority’s agents now have access to the detailed invoices from mobile operators, which list all calls received and issued by their subscribers 5.

Under previous legislation, the Authority could seize employee mobile phones or invoices from certain companies suspected of anti-competitive practices but could not get the information from the source 6.

The September 6, 2015 Macron law 7 had already sought to grant this power to the Competition Authority but was censored by the Constitutional Council due to a lack of privacy safeguards 8.

Sort-of safeguards

The PACTE Law has raised serious questions about the respect of the right to privacy . prerogatives, its president Isabelle de Silva, insists that proper guarantees have been put in place 9.

The Competition Authority recalled that no access is given to the content of telephone conversations and specified that the right of access to data stored and processed by operators is subject to the agreement of a controller of data connection requests.

This controller will alternately be an irremovable magistrate of the French Council of State (Conseil d’Etat) or the French Supreme Court (Cour de Cassation) appointed by the General Assembly of the high court concerned, for a period of 4 years, which may not be renewed 10.

The text also provides guarantees of independence, since the controller may not receive or seek instructions from the Competition Authority or any other authority, in the performance of his duties 11.

This mechanism has been validated this time by the Constitutional Council 12.

New investigative powers likely to facilitate Authority investigations

Lawyers fear that the Authority will collect information regardless of whether they are work-related or personal. Some lawyers would have preferred a real jurisdictional magistrate to authorize seizures 13.

A further risk is that the mere existence of telephone conversations between two employees of competing companies, regardless of context, may be systematically used by the Authority to request authorization to carry out raids and seizures, or may even be directly exploited to presume the existence of an infringement 14.

Related content

Analysis
La 32e chambre correctionnelle du tribunal judiciaire de Paris se prononce pour la première fois en matière de délit de manipulation de marché
7 July 2023
The Paris Criminal Court issues its first decision on a market manipulation case
On 25 May 2023, the Paris Criminal Court (32nd Chamber) ruled for the first time on the offence of market...
Analysis
CumEx files
13 January 2022
CumEx files, from tax optimization to tax fraud?
A look back at the revelations of the "CumEx files" and key take aways on these practices of tax optimization...
Press review
Press review
22 September 2023
Press review – Week of 18 September 2023
This week, the Navacelle press review looks back at the adoption of the eighth version of the European Administrative Cooperation...
Analysis
La Cour de cassation reconnaît à la justice française la compétence universelle dans le cadre de crimes commis en Syrie.
18 September 2023
French Supreme Court (Court de Cassation) recognizes the universal jurisdiction of the French judicial courts...
In two rulings handed down on May 12, 2023, the French Supreme Court (Cour de Cassation) clarifies the conditions under...
Press review
press review
15 September 2023
Press review – Week of 11 September 2023
This week, the Navacelle press review looks back at the decision of a Brazilian Supreme Court judge to overturn the...
Press review
Press review
8 September 2023
Press review – Week of 4 September 2023
This week, the Navacelle press review discusses the guide published by the European Commission for EU operators on the best...
News
Bastille day newsletter 2023
14 July 2023
Bastille Day Newsletter 2023
On this 14th of July, lawyers at Navacelle offer you, as it does every year, a selection of noticeable events...
Publication
Judicial public interest agreements (CJIP)
13 July 2023
[Infography] Focus on Judicial public interest agreements (CJIP)
Since its creation by the Sapin II law of 9 December 2016, the Judicial Public Interest Agreement (“Convention Judiciaire d’Intérêt...
Publication
Focus on the French financial markets authority activity (AMF)
13 July 2023
[Infography] Focus on the French financial markets authority activity (AMF)
The French Financial Markets Authority (“AMF”) intensive enforcement activity again demonstrates the regulator’s ambition to continuously strengthen market surveillance, through...
Publication
13 July 2023
[Infographie] Focus on the French data protection authority activity (CNIL)
Over the past months, the French Commission Nationale de l’Informatique et des Libertés (“CNIL”), regulator of personal data, imposed tremendous...
Analysis
13 July 2023
Overview of arbitration case law
French case law rendered this past year has notably addressed the enforcement regime against assets frozen because of international sanctions,...
Analysis
13 July 2023
AFA and PNF publish a guide to anti-corruption internal investigations
On 14 March 2023, the French Anti-Corruption Agency (“AFA”) and the French National Financial Prosecutor's Office (“PNF”) jointly published a...
Analysis
13 July 2023
PNF updates its guidelines for judicial public interest agreements
In January 2023, the National Financial Prosecutor published its new guidelines on judicial public interest agreements, which are intended to...
Analysis
13 July 2023
The French Supreme Court confirms in its decision “La Chaufferie de La Défense” that the...
In a decision dated 9 November 2022, the criminal chamber of the French Supreme Court confirmed its case law on...