On 24 August 2011, the Commercial Court in Paris ordered the French competition authority, the Autorité de la concurrence (Autorité), to disclose documents relating to the settlement of an antitrust investigation in the context of a private damages action. This order could significantly strengthen the position of claimants in damages actions in France and potentially in other EU Member States and adds another layer of complexity to cartel cases in the European Union. When agreeing to settle with the Autorité, companies must therefore now consider the potential risk of having to disclose documents in future actions.
The French Competition Authority has taken a hard stance by withdrawing its authorization of French broadcaster Canal Plus’ purchase of rival commercial television company TPS, formerly the two most powerful players on the pay TV market. This decision reasserts the importance of respecting imposed remedies. In this case, Canal Plus was sanctioned with a fine of EUR 30 million for failing to fulfill the 59 remedies imposed by the Authority in 2006, and has been given one month to re-notify the transaction to the Authority.
While Canal Plus had "only" failed with respect to 10 of the 59 remedies, the Authority did not consider this to be an attenuating circumstance because several of these remedies were "essential" and that the entire "package" of commitments should have been implemented due to the likely impact of the concentration on competition in the market. In particular, Canal Plus was blamed for being too slow in providing downstream distribution companies (principally represented by internet access providers) access to channels and content. The downstream distributors needed this content to be able to offer competitive packages of pay TV. The Authority considered this obligation essential and at the heart of the commitments necessary for the maintenance of competition.
In France, the Competition Authority can act on its own to take action against companies that fail to respect commitments entered into in the context of an antitrust investigation. In the past, fines have been imposed on companies, but the amounts were quite symbolic (i.e., EUR 200,000 for two companies active in the postage sector). This recent decision will force companies submitting to remedies to resolve a planned concentration to be certain it can accept/effectuate those constraints, as the ultimate failure to respect them could lead to disastrous outcomes. Indeed, not only could companies risk a withdrawal of the Authority’s authorization and the imposition of very high fines, such as in the present case, but also, the parties could be ordered to reverse the concentration if the commitments would prove impossible to honor. Canal Plus, which has one month to renotify the concentration, will therefore be forced to undergo a new investigation by the Authority which could in theory end with an obligation to demerge.
It still remains unclear which type of remedies are considered essential by the Authority and, consequently, which breach could lead the Authority to impose the obligation to renotify and fines as significant as in the present case. More specific details from the Authority about which remedies are considered essential are necessary so that companies can be informed during their considerations of whether or not to accept certain types of remedies. This case is, however, very specific as the conditional authorization granted by the French Competition Authority in 2006 led to the creation of a monopoly. Moreover, many authors and practitioners highly criticized this decision, particularly several remedies which appeared to be impractical to implement immediately.
A French court has added another layer of complexity to cartel cases in the European Union. The Commercial Court in Paris has ordered the French competition authority to disclose documents relating to an antitrust investigation. The order concerns non-confidential versions of written and oral statements gathered during the investigation.
The ruling may strengthen plaintiffs’ position in damages actions. The French court’s ruling only concerns settlements before the French competition authority but other European countries may follow France’s lead. According to the European Court of Justice’s recent Pfleiderer judgement, national courts must decide whether plaintiffs may have access to documents submitted to national Member State authorities.
The number of private damages actions in the European Union is constantly increasing. Most of these actions are "follow-on action," based on an infringement decision by the European Commission or the antitrust authority of an EU member State. Plaintiffs can rely on the infringement decision as proof for the antitrust infringement but must further substantiate and prove the harm suffered as a result of the cartel. They are therefore seeking access to information contained in the antitrust authorities’ files, in particular to leniency applications, the confidential version of the infringement decision and also settlement documents. It is still unclear whether plaintiffs will have access to leniency documents submitted to national antitrust authorities.
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