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

2. Brief overview of the situation in France
Focus on antitrust proceedings

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

4. Particularities of French proceedings 1
Particularities of French proceedings 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

5. 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)

6. 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 »

7. 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

8. 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

9. 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

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

11. 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

12. 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)

13. 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)

14. 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

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