In July 2015, the French Competition Authority (“FCA”) took a look back at the year 2014, in a published Report, and pinpointed the magnitude of its powers to curb anti-competitive practices.
As evidenced below, the data reported by the FCA testifies to the efficiency of less adverse and more preventive tools favored by the FCA such as the leniency programme — pursuant to which partial or total immunity may be granted to a company which comes forward to report an anti-competitive practice it took part in — and of the “commitment procedure” — a procedure whereby a company under investigation commits to put an end to abusive practices in order to avoid or alleviate a finding of liability and the corresponding fines and penalties, by issuing a series of proposed undertakings that may be accepted by the FCA.
Top decisions imposing penalties reported by the FCA for 2014 include:
The record-breaking penalties for price-fixing schemes conducted by suppliers in the household (€ 345.2 Million total fine) and personal care products (€ 605.9 Million total fine) industries (FCA Decision 14-D-19 of 18 December 2014, see our February 2015 edition of the Bulletin). This decision ranks among the top three anticompetitive agreements ever uncovered through the leniency programme.
A € 3.5 Million penalty to the Amaury Group for pursuing a strategy intended to hinder a competitor’s entrance on the French daily sports newspaper market (FCA Decision 14-D-02 of 20 February 2014, see our April 2014 edition of the Bulletin).
The FCA, with a budget of EUR 20.7 million for 2014, imposed penalties in the amount of EUR 1 Billion that same year.
Further, the FCA also prevented anti-competitive practices without the need to impose any penalties, through the “commitment procedure”, in many instances, such as:
The commitment by Nespresso to make it easier for competitors, even outside France, to produce coffee capsules compatible with its machines (Commitment decision 14-D-09 of 4 September 2014, see our October 2014 edition of the Bulletin).
The launch in December 2014 of a FCA preliminary investigation into the anti-competitive effects of price parity clauses – or most favoured nation clauses – used by online travel agencies in their contracts with hoteliers which led to a series of commitments by BOOKING.COM and to fundamental changes in the hotel industry (see our November 2015 edition of the Bulletin for a summary of the various developments since December 2014).
The FCA was ranked “five stars” by the Global Competition Review, the world’s leading antitrust and competition law journal (“GCR”). The FCA is one of the very few agencies worldwide to have received this top score. The GCR referred to the FCA as a “galleon in full sail – fast, powerful, sophisticated and bold”.
The FCA further reported that it had awarded penalties in the total amount of EUR 4.8 Billion in the period from 2004 to July 2015. Since 2004, the FCA has been the most active national competition authority in the EU. The FCA holds a record of 236 launched investigations likely to result in the application of EU competition law, a number remarkably close to that boasted by the European Commission itself (281 investigations launched).