Complainant's rights within the competition proceedings Access to file LIDC Congress Hamburg 27 September 2008 Chantal Momège, partner Ashurst

Brief overview of the situation in France Focus on antitrust proceedings

Content Particularities of French proceedings New issues At the beginning of the proceedings During the proceedings New issues Commitment proceedings Parallel proceedings

Particularities of French proceedings 1 Particularities of French proceedings 1.1 At the beginning of the proceedings Prior to 1986 : the complainants had no right to lodge a complaint 1986 ordinance : right granted to the complainant to lodge a complaint before the Conseil de la Concurrence French law closer to community law Majority of cases brought by complainants

Half of cases : individuals’ claims Ministry Complainant 2002 11 (19%) 34 (59%) 2003 16 (28%) 34 (55%) 2004 10 (27%) 31 (58%) 2005 15 (19%) 23 (41%) 2006 17 (26%) 29 (48%) 2007 13 (19%) 32 (54%) Average /year 23% 53% Half of cases : individuals’ claims Individuals claims : twice ministerial claims French Competition authorities : more efficient (access to information)

Furthermore Decisive role of complainants in sensitive sectors Decisive role of complainants in interim measures Competition Council : no right to initiate proceedings Required by complainants Competition Council has to deal with interim requirements EC Commission : « may… order interim measures »

Interim measures : some figures 2001 2002 2003 2004 2005 2006 2007 EU 1 France 8 9 4 2 3 6 EC Commission : last interim measure in 2001 (total : 4) French Competition Council : 6 interim measures in 2007

Particularities of French proceedings 1.2 During the proceedings Complainant = same right as the undertakings under investigation : Adversarial system Quasi-total access to the file Addressee of the statement of objections Addressee of the report Attend the hearings Paradoxical situations, in case of dismissal order, only the complainant may attend the hearing Change in 2007, presence of the undertaking to the hearing Major discrepancies between French and EC law

Same rights but subject to business secrets since 2004 Before 2004 : access to one file Since 2004 : 2 files = a confidential file and a non-confidential file Complainant’s access to the non-confidential file Confidential annex Step forward the EU system / convergence with EU approach

Particularities of French proceedings Conclusion Better situation, of the complainant in France Access to file Competition Council has to deal with any complaint

New Issues 2.1 The Commitment proceedings EC Reg. 1/2003 Art 5 Introduced in France in 2004 « Success story » in France : 22 decisions have been held Complainants rights : Application of the equal access’ principle (undertakings and complainants) subject to business secret access to the same file documents access to the commitments propositions access to third party’s observations hearing Ability to lodge an appeal

New Issues 2.2 The parallel proceedings : damages actions Complainant cannot directly use the file of the Competition Council But, access to the file upon judge’s request to the Competition Council Limits to transfer : legitimate reasons (article 11 Code of Civil Procedure) Business secret Leniency programs (the Council might transmit a non confidential version as a substitute)

New Issues Cross-border issue : the Intel case EC proceedings pending before the EC Commission (potential abuse of dominant position) At the same time : damages actions lodged with the US Courts by competitors and consumer group. US discovery proceedings : Access to 200 millions pages of documents April 08: UFC Que Choisir request access before the US Courts to all documents disclosed In order to lodge damages action(s) before EC national Court(s)

Consequences : Potential adverse effects on leniency programs, on business secret protection principle Attend to circumvent EU and national rules governing access to file Necessity to have clear rules governing access to file in private actions

New Issues Conclusion Extension of complainants rights in new proceedings New issues : a topic for the next congress