New Tools For The French Watchdog As ECN+ Directive Is Now Fully Implemented

• Published date: 19 July 2021
• Subject Matter: orporate/Commercial Law, Anti-trust/Competition Law, Corporate and Company Law, Directors and Officers, Antitrust, EU Competition
• Law Firm: Bird & Bird
• Author: Mr Thomas Oster and Eliott Costet

On 26 May this year, a presidential ordinance (the Ordinance) perfected the transposition into French law of the ECN+ European Directive of 11 December 2018, which aims to strengthen the powers of national competition authorities and increase their effectiveness. Several provisions of the directive were already implemented into French law, while others still had to be introduced into French legislation, in particular regarding procedural aspects or the determination of the sanctions that the French Competition Authority (the FCA) can impose.

FCA will prioritise the prosecution of cases it considers more important

The Ordinance strengthens the principle of discretionary prosecution, giving the FCA from now on the possibility to optimise its resources by allocating them to cases regarded as being of major importance and rejecting complaints or referrals which are not considered to be a priority. In addition, the FCA will have the power to impose interim measures in its own discretion without the necessity for a complainant to request such interim measures.

Criminal immunity for individuals in leniency proceedings

The Ordinance also provides that directors and managers of a company that benefited from total immunity from fines under the leniency procedure will now be able to benefit from an immunity from criminal penalties, provided they have actively cooperated with the FCA's investigation. Previously, such immunity did not officially exist, although the FCA did state in its guidelines that it would not refer the matter to the public prosecutor in such case. The risk of criminal sanction was therefore purely hypothetical but expressly providing for this immunity into French law could therefore further encourage directors and managers of...