The Law Macron implemented the settlement procedure in France in 2015. This replaced the French non-challenge procedure (procédure de non-contestation des griefs).
The settlement procedure in France
The major change is that parties willing to conclude a settlement procedure will be informed of the minimum and maximum fine that may be imposed (and not of a percentage of reduction relating an amount of sanction which is not yet known).
The disclosure issues raised before the French Competition Authority (FCA)
On 21 March 2017, the FCA issued a settlement decision relative to practices implemented by ENGIE on the electricity and gas market.
In this case, which we commented on in our article French Competition Authority fines ENGIE €100m for abuse of dominance, ENGIE was accused of having taken advantage of its historical monopoly on the electricity and gas market, and notably of its client database, in the context of the liberalisation of the gas and electricity markets.
ENGIE did not challenge the objections formulated by the FCA and accepted the terms of the settlement with a €100m fine.
During the course of the proceeding, the plaintiff, Direct énergie, asked for the communication of several documents to use as evidence for its defence:
- Direct énergie suspected that ENGIE had actually challenged the statement of objections and therefore should not have been entitled to benefit from a settlement procedure. Indeed, it appeared that before asking for the benefit of this procedure, ENGIE has submitted observations challenging the statement of objections of the FCA.
- Direct énergie also wanted to make sure that ENGIE did not manage to have (i) the interim measures (which granted competitors access to its database) not further extended, and (ii) the structural split between its entities considered as useless.
The documents required were: the observations submitted by ENGIE, the minutes of the settlement acceptance and the settlement proposal of the investigations services. The Chief of the FCA denied access to these documents, alleging that the confidential version of the minutes could not be disclosed and that the investigation file did not contain any observations, written proposal of settlement or notes by the instigation services regarding sanctions.
Confirmation of the confidentiality of the documents communicated within the settlement procedure Direct Energie appealed the decision before the Paris Court of Appeal and asked for the disclosure of such documents, not only to itself, but also to the Paris Court of Appeal (within the file the FCA had transmitted to the Court).
Disclosure of documents to the Court of Appeal
The Court rejected the request of the appellant and approved the FCA of having transmitted a non-confidential version of the file to its jurisdiction, meaning the exclusion of the minutes accepting the settlement.
Disclosure of documents to the appellant
Regarding the observations submitted by the ENGIE to the FCA before the initiation of the settlement procedure, the Court stated that, by accepting the settlement procedure, ENGIE waived these observations. These observations became purposeless and were removed from the file.
As for the settlement proposal and the exchanges with the investigation services, the Court considered that the exchanges on the facts may be disclosed if needed, but not the exchanges on the settlement procedure, which should be kept confidential in order to comply with the protection of public economic order.
The waiving, by a party, of its right of defence and of its right to challenge the statements and the sanction, shall be counterbalanced by the guarantee of confidentiality. In any event, the Court concluded that these documents would not have been necessary since the appellant is already in possession of the information needed for an effective challenge of the FCA decision.
Finally, the Court indicated that no legal text imposes the disclosure of the minutes accepting the settlement. This document was part of the settlement procedure file and shall therefore not be disclosed.
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