Anticompetitive practices: increased risk of criminal liability of natural persons

Fine of €76.6 million for a landmark decision in more ways than one!

Focus on the use of criminal procedure by the Fr Competition Authorities

Décision 24-D-06

Imagine, you are in the middle of your work meeting in a hotel, police officers burst in, seize all the documents present, all the computers, all the phones, and take everyone into custody.

At the same time, your company’s headquarters are searched.

You learn in custody that your phone has been tapped.

Are you a drug lord, a mob godfather, a spy?

Nothing of the sort… You have been colluding with your competitors for years, in particular to jointly set prices in your market and to have gentlemen agreements relating to the partition of clients.

You are subject to a joint investigation by the criminal prosecutor and the competition authorities. What is it about?

Two parallel investigations conducted by the Fr Competition Authority (targeting companies) on the one hand, and the Prosecutor’s Office (targeting natural persons driving anticompetitive practices) on the other hand, each taking over from the other by using its own investigation powers. This collaboration allows the evidence collected to be shared between the two authorities.

More specifically, in this case:

• The Fr Competition Authority received anonymous indications of anticompetitive practices in which named natural persons would have taken a personal and decisive part. Considering that they could not use them as such, they forwarded them to the Public Prosecutor. They relied on the obligation of any State authority that is aware of a crime or offence to notify it to the Prosecutor (Article 40 of the Code of Criminal Procedure).
• The Prosecutor opened a criminal investigation and referred the matter to an investigating judge.
• In this way, more advanced investigative powers than those of the Fr Competition Authority were used (telephone tapping and police custody).
• Agents from the Fr Competition Authority participated in the criminal investigation at the request of the investigating judge.
• The evidence obtained was finally forwarded by the investigating judge to the Fr Competition Authority for use in its proceedings.

Is this way of proceeding acceptable or is there a misuse of procedural rules?

No misuse of procedural rules:

• The criminal courts validated the process and found that the evidence sent to the Prosecutor made it possible to establish the existence of an offence committed by natural persons in the company, which excluded any misuse of procedure.
• The Fr Competition Authority underlines that administrative and criminal proceedings are parallel and independent and may give rise to cooperation between the authorities. There is no need for a prior characterization of an anticompetitive practice by the Fr Competition Authority for the Public Prosecutor’s Office to be informed of the practices of natural persons.
• The documents in the criminal file that were set aside by the criminal courts were also set aside by the Fr Competition Authority.

It is not easy to challenge this procedural route!  The decision can still be appealed: more to come?!

This decision highlights the relevance of competition compliance trainings and the necessity to have the management team committed to compliance.

We deliver competition compliance training!