France: French Competition Authority Publishes Guidelines On Settlements In Antitrust Proceedings

Last Updated: 17 May 2012
Article by Sergio Sorinas, Estelle Jegou and Christine Jorns

On 10 February 2012, the French Competition Authority (FCA) published a procedural notice concerning the settlement procedure (the Notice). The Notice aims at setting out the approach followed by the FCA regarding the settlement procedure in order to enhance transparency for the benefit of companies.

The settlement procedure, contained in article L.464-2, III of the Commercial Code, enables companies subject to infringement proceedings to waive their right to challenge the charges notified by the FCA in exchange for a fine reduction between 10 and 25%.

1. Scope and conditions

  • Scope of the settlement procedure and eligibility conditions
    • The settlement procedure is available to companies which are subject to proceedings before the FCA for infringements of competition law, in particular anticompetitive agreements and abuses of a dominant position.
    • In order to benefit from the settlement procedure the company must waive its right to challenge (i) the entirety of the practices in question, (ii) the legal assessment of these facts, and (iii) their imputability. In addition, the company must not challenge the procedure having led to the notification of the Statement of Objections, nor the FCA's jurisdiction.
  • Combination with leniency
    • The combined application of the settlement and leniency procedures (and thus a double fine reduction) is possible if the FCA considers that this would simplify and speed up the proceedings.
  • Structural or behavioural commitments at the option of the company
    • A company deciding not to challenge the Statement of Objections may at the same time propose structural or behavioural commitments which can lead to a further reduction of the fine.
    • The company can, in particular, propose setting up or improving a competition law compliance programme and thus benefit from a specific fine reduction of up to 10%. The FCA's approach to competition law compliance programmes is set out in a dedicated framework document (see the separate e-bulletin "The French Competition Authority publishes best practices on competition law compliance programmes").

2. Impact of settlement on other parties to the proceedings

  • The chief investigator (rapporteur général) of the FCA can, within the deadline for responding to the Statement of Objections, inform the other parties to the proceedings of the settlement application in order to allow them to decide whether they also wish to enter into a settlement procedure. Otherwise, all parties are notified of the settlement application at least three weeks prior to the hearing before the College.
  • A settlement produces legal effects for the other parties to the proceedings which have chosen not to settle their case. Thus, a settlement eases the burden of proof on the Authority vis-à-vis the parties disputing the Statement of Objections: the FCA only needs to prove their participation in the infringement, not however the practices themselves or their legal assessment which are deemed established.

3. Fine reduction for settlement

  • The settlement of a case is per se rewarded by a fine reduction of 10%
    • Companies choosing only not to contest the objections benefit in principle from a fixed fine reduction of 10%.
    • In addition, the maximum amount of the fine is reduced to half of the normally applicable amount (5% of worldwide consolidated turnover rather than 10%).
  • Commitments are rewarded by an additional fine reduction of up to 15%
    • Putting in place or improving a competition law compliance programme can be rewarded by an additional fine reduction of up to 10%
    • Also, by taking further structural or behavioural commitments, the company can benefit from an additional fine reduction of up to 5%.
    • As a result, companies which opt for a settlement and present commitments can qualify for a fine reduction of up to 25%.

4. The settlement procedure

  • The application for settlement
    • A company wishing to opt for a settlement must submit a settlement application to the chief investigator of the FCA within the two months deadline for responding to the Statement of Objections.
    • The chief investigator is not obliged to accept this request. A decision is taken on a case-by-case basis, taking into account the context, the simplification and speeding up of the proceedings due to the settlement.
  • Proposal of fine reduction by the chief investigator
    • If the chief investigator deems the conditions for a settlement met and agrees to the proposed commitments, he will notify the company in question of his intention to propose a fine reduction to the college of the FCA.
    • The agreement between the company and the chief investigator is recorded in minutes containing (i) the company's waiver of the right to contest the Statement of Objections, (ii) if applicable, the commitments taken by the company, and (iii) the proposal with the fine reduction which the investigator intends to submit to the college of the Authority.
  • Decision by the college of the Authority
    • The college is not bound by the fine reduction proposed by the chief investigator. Nonetheless, it commits itself to referring the case back to the case-team if it envisages departing from his proposal to the disadvantage of the company.
    • The college of the Authority verifies that the chief investigator applied the settlement procedure correctly and made no errors in its assessment of the proposed commitments.

For companies and their advisers, the Notice certainly constitutes a progress, enhancing the predictability of the settlement procedure and in particular the percentage of the fine reduction. The possible combination with the leniency procedure in line with EU law is also to be welcomed. The predictability of the fine remains, however, insufficient; it is particularly regrettable that the Notice does not envisage the possibility for the chief investigator to propose a maximum amount of the fine or a range of the fine in absolute terms.

In addition, preventing the company applying for settlement from contesting the validity of the proceedings or the FCA's jurisdiction seems questionable from a legal point of view given that these aspects are unrelated to the substance of the case. Finally, not being able to challenge the imputability of the practices may diminish the procedure's appeal for groups of companies. This will particularly be the case in situations where the parent company is being pursued for infringements committed by a subsidiary due to the presumption based on ownership of the share capital and without any direct involvement of the parent company in the practices in question.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.