The French Competition Authority has, for the first time, imposed sanctions on a company for obstruction of an investigation before any decision has even been made on the merits

The French Competition Authority (FCA) has implemented for the first time the procedure provided for by the second paragraph of Article L464-2 V of the French Commercial Code, which allows it to impose a financial penalty on any company obstructing one of its investigations.

There is an ongoing investigation concerning Brenntag for alleged implementation of anti-competitive practices in the chemicals sector.

Brenntag, however, has prevented the FCA from carrying out its investigation by refusing to provide the information which the FCA has repeatedly requested, or by providing it only after a non-negligible delay and in an incomplete and imprecise manner. The information requested was essential for the FCA to understand the functioning of the relevant market and to assess the merits of the allegations against Brenntag.

By this decision, the FCA has reaffirmed the fundamental importance of the obligation of honest and active cooperation by companies which are the target of an investigation. This obligation implies, on the part of the companies concerned, total cooperation throughout the investigation and the provision of complete and accurate answers to requests for information and/or provision of documents within the given deadlines.

It is irrelevant whether or not a company’s lack of cooperation with the investigation involves any fraudulent intentional element. Simple negligence is sufficient for the purposes of finding an obstruction.

In the present case, the FCA insisted that it was necessary to impose a dissuasive sanction in order that the companies concerned would no longer be tempted to obstruct the investigation.

The FCA finally reviewed the position under European and French case law on the question of the parent company’s liability for the actions of its subsidiary, and concluded that, by owning 99.94% of Brenntag SA, Brenntag AG was presumed to have exercised a decisive influence over the behavior of its subsidiary.

Taking into account the gravity of the facts, and noting that the maximum fine set by Article L464-2 is 1% of global turnover, the FCA has fined Brenntag AG and Brenntag SA up to €30m.

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