Abuse of a dominant position
Abuse of a dominant position is prohibited by Article IV.2 of the Code of Economic Law and by Article 102 TFEU. In compliance with case law, it is not illegal for an undertaking to occupy a dominant position, and an undertaking can participate in open competition on the basis of its merits within the market in which it holds a dominant position. However, it is incumbent upon this undertaking to ensure that this behaviour does not serve to undermine effective and fair competition within this market.
The prohibition of the abuse of a dominant position is an essential component of competition policy, and its effective application enables markets to operate better, for the benefit of undertakings and consumers.
The European Commission’s guidelines lay out the principles underpinning the assessment of exclusionary conduct practices by dominant companies. However, these guidelines do not deal with the abusive exploitation practices of undertakings in dominant positions that are also prohibited by Article IV.2 CEL and by Article 102 TFEU.
Request for interim measures
Undertakings whose interests have been harmed can ask the Competition College to apply interim measures that would suspend such practices, if it is urgent to it is urgent to prevent serious, imminent and difficult to overcome damages to the applicant undertakings or if the practices in question are not in the general economic interest (Art. IV.64, §1 CEL).
Requests for interim measures can be submitted to the President by the complainant, the Investigation and Prosecution Service, the Minister or the competent Minister depending on the sector in question. At the same time, the complainant must also submit a complaint on the merits to the Investigation and Prosecution Service for the same facts.
The President decides on the composition of the Competition College that will examine the case and sets a hearing within a period of one calendar month after the request for interim measures has been filed (the time limit can be extended by up to two weeks).
The Competition Prosecutor General submits any written observations at the latest six business days before the hearing date.
During the hearing, the Competition College hears the applicant and the defendant. At their request, it also hears the Competition Prosecutor General or the competition prosecutor delegated by the latter, the Chief Economist and the General Counsel.
The Competition College issues a ruling in a well-founded decision within one calendar month after the hearing. The time limit can be extended by up to two weeks. In the absence of a decision within the time limits, the request for interim measures is deemed to have been rejected.
The diagram relative to interim measures lists the various steps of the procedure.
Investigation and decision
Investigation and inspections
The Competition Prosecutor General initiates investigation files while taking into consideration the priorities of the Authority (in French), after having consulted from the Chief Economist.
Within the BCA, investigations are carried out by the Investigation and Prosecution Service, under the direction of the Competition Prosecutor General. For each opened investigation file, a team composed of Investigation and Prosecution Service personnel members is designated and placed under the direction of a competition prosecutor, who looks after the day-to-day management of the investigation.
The BCA personnel members are authorised to perform inspections, with the prior authorisation of an examining magistrate. As part of their mission, they can access the premises of the undertakings, their transport means and other locations in which they have reason to believe that relevant information may be found. When necessary, they can also access the homes of the directors of undertakings and other persons. Moreover, they can question the undertaking’s personnel regarding facts or documents relating to the purpose of the mission order.
The guidelines describe the inspection procedures in greater detail:
During an investigation (but before filing the draft decision), the Investigation and Prosecution Service can ask the parties if they wish to initiate discussions for the purposes of reaching a settlement (i.e., an agreed settlement). If the answer is positive, the Investigation and Prosecution Service identifies the agreed grievances and allows the parties to access the material evidence used for this purpose. The Investigation and Prosecution Service also indicates the maximum and minimum fines that it plans to propose to the Competition College.
In order to reach a settlement, the undertaking or association of undertakings must acknowledge its participation in the infringement, admit its responsibility and accept the indicated penalty. The Investigation and Prosecution Service may then reduce the fine by 10%.
The Investigation and Prosecution Service’s settlement is equivalent to a decision by the Competition College (Article IV.57 CEL).
Decision of the Competition College
Once the investigation is concluded (except in case of a settlement), the competition prosecutor files a draft decision with the Competition College. He also sends a copy to the undertakings and natural persons whose activity has been investigated. When they have had access to the file, the parties have two months in which to submit their observations.
The Competition College then organises a hearing within no less than one month and no more than two calendar months.
During the hearing, the Competition College hears from the competition prosecutor and the undertakings and natural persons whose activities have been investigated, as well as from the complainant, if the latter wishes to be heard. At their request, the Competition College also hears the Minister for the Economy, the Chief Economist and the General Counsel.
Except in certain specific cases, the Competition College can find:
- that there is a restrictive competitive practice, and then order its cessation; this decision may include fines and/or periodic penalty payments [insert link];
- that there is no restrictive competitive practice;
- in view of the commitments offered by the parties, decide to make these commitments mandatory. In this case, the College does not express itself on the existence of an infringement, and the decision implies no damaging admission on the part of the undertaking concerned.
Fines and periodic penalty payments
The Competition College can impose fines and periodic penalty payments.
- For the infringements under Article IV.1 CEL, fines can be imposed on the companies, of up to 10% of their turnover.
- When undertakings do not comply with the prohibition decisions or the decisions adopted within the framework of interim measures, periodic penalty payments can be imposed on them of up to 5% of their average daily turnover.
- For the infringements under Article IV.1, §4 CEL, fines of between EUR 100 and EUR 10,000 can be imposed on natural persons.
- When undertakings do not cooperate in the investigation of a case or a sector investigation, fines can be imposed on them of up to 1% of their turnover.
- Periodic penalty payments can also be imposed as part of a procedure for interim measures.
- Guidelines on the calculation of fines(in French).
The undertakings in question, the complainant and the Minister as well as any person justifying an interest (and who has asked the Competition College to be heard) can lodge an appeal against a decision by the Competition College within 30 days as of the notification of the decision in question. However, the undertakings in question cannot lodge an appeal against the Investigation and Prosecution Service’s settlement decision.
In principle, an appeal does not suspend the appealed decisions. However, in certain circumstances, the Market Court may suspend all or part of the Competition College’s decision.