The French antitrust body, the Autorité de la Concurrence, published a new procedural notice, which was opened to public consultation on 11 June, on the method for determining fines, which repeals and replaces the previous notice of 16 May 2011.

The Notice aims to increase transparency regarding how the Autorité determines fines for anticompetitive practices and clarify the calculation method. It also details the method used by the Autorité to adjust fines on a case-by-case basis.

The main changes in the Notice are as follows:

• Change in the understanding of the seriousness and duration of the practices

The new Notice clarifies the methods for calculating the basic amount of fine. The non-exhaustive list of factors which are taken into account to assess the seriousness of the practices was updated. This list now refers, among the parameters of competition affected by the infringement, to diversity of supply, quality, innovation and environment. The Autorité also reiterates that it intends to severely punish the most serious horizontal agreements and abuses of dominant positions.

Thus, the Autorité intends to preserve the punitive effect of the fines it imposes. This does not mean that fines will be significantly increased mechanically in future, since, the Autorité will adjust the fines according to necessity and proportionality but also the abilities of the parties to pay.

• Clarification of the criteria for individualizing the sanction

To determine the amount of the fine, the Autorité included new circumstances, in particular where the undertaking puts an end to the infringement as soon as the Autorité intervenes, or effectively cooperates with the Autorité outside the scope of the leniency procedure, or to take account of the reparation measures it has taken in the course of the procedure in respect of the victims of the practice. In addition, the Autorité provides that, to maintain the deterrent effect of the fine, it may increase it where it is clear that the estimated illicit gains made by the undertaking as a result of the infringement in question exceed the amount of the financial fine which it could impose. Finally, the Autorité will take into account fines imposed by other EU competition authorities and by the European courts.

• An updated fine regime for associations of companies

The Notice incorporates the legislator's replacement of the concept of institution by the concept of professional body. According to which, a professional body may now be fined up to 10% of its turnover or 10% of the sum of the total worldwide turnover of each member active in the market affected by the association's infringement, where the association's infringement relates to the activities of its members.

Finally, the Notice should not be understood as an automatic and arithmetical calculation method. The Autorité takes into account the different elements of the case and adjusts the coefficients on a case-by-case basis, in accordance with the principles of necessity and proportionality of the fine.This Notice is, thus, an important further step towards the convergence of competition rules and will promote a consistent application of fines between the Autorité and the European Commission.

(Autorité de la Concurrence – 30.07.2021)

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