Antitrust Alert: The French Competition Authority Publishes Guidance on Settlement Procedures
In December 2018, the French Competition Authority ("FCA") published a notice clarifying the FCA's settlement procedure in competition cases ("Notice"). The FCA’s General Rapporteur may offer settlement to companies that agree not to challenge the allegations made against them in the statement of objections. The signed settlement report is sent to the FCA Board, which either imposes a fine consistent with the settlement report or remands the matter for further investigation. Since first application in 2016, the FCA applied the settlement procedure in 11 cases, approximately 14 percent of the FCA’s antitrust decisions.
The procedure applies to both anticompetitive agreement and abuse of dominance cases. To expedite settlement, the settlement report must be finalized within two months of the statement of objections. This can be short because parties often prepare a response to the statement of objections to address the risk that the FCA terminates settlement, which it can do at any time.
In exchange for settlement, the FCA offers a reduced fine, which can be coupled with a reduction under the leniency procedure. The Notice does not indicate the reduction percentage, although it advises that settlement reductions will be less than leniency reductions.
The FCA’s Notice follows the Netherlands Authority for Consumers and Markets ("ACM") guidelines for settlement procedures, detailed in our January 2019 Alert. Compared to the ACM’s guidelines, the FCA’s procedure is more flexible regarding the: (i) amount of the reduction (capped at 10 percent in the Netherlands, but uncapped in France), (ii) requirement that all parties settle (exists in the Netherlands, but not in France), and (iii) admission of liability (in the Netherlands, but not in France).
The Notice is important because it:
- Confirms that documents companies submit during settlement will be excluded from the investigation file in case the procedure is terminated.
- Clarifies the procedural steps of settlement discussions and the cost-benefit analysis that companies will have to make.
- Confirms the FCA’s reluctance to settle hybrid cases (i.e., when some companies involved refuse to settle).
