On 5 August 2015, the French Constitutional Council upheld most of the provisions of the law on growth, economic activity and equality of economic opportunities (the so-called "Macron law") adopted by the French Parliament on 10 July 2015 (see VBB on Competition Law, Volume 2015, No. 7, available at www.vbb.com). However, two significant provisions introducing changes to the French competition law regime were found to be unconstitutional.
First, the new procedure on structural injunctions in the retail sector was found to be in breach of both the right of property and the freedom to pursue commercial activities. Under this procedure, the French Competition Authority ("FCA") was given the power to impose structural measures on an undertaking (or a group of undertakings) which operates one or several retail businesses and holds a dominant position (with a market share exceeding 50%) if the FCA finds that this situation leads to excessive market concentration. According to the Constitutional Council, this new power granted to the FCA was not proportionate to the objectives of consumer protection and the safeguard of economic public order.
Second, the provision intended to increase the FCA agents' powers by granting them access to any data processed and stored by telecommunication operators, including telephone bills, was found in breach of the French Constitution. In particular, the Constitutional Council ruled that the provision did not include sufficient guarantees to protect the right to privacy.
The remaining provisions of the Macron law related to the reform of the French competition law regime examined by the Constitutional Council were found to be in line with the Constitution, and the law entered into force on 7 August 2015 after its promulgation by the French President.
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