An appeal was filed before the Supreme Court against a Competition Authority decision for an application for a priority preliminary ruling on a procedure called 'la question prioritaire de constitutionnalité' (QPC) (which may be translated as 'a priority ruling on constitutionality'). It argued that Article L464-2 of the Commercial Code establishes that the leniency procedure is contrary to the rights and freedoms guaranteed by the Constitution.

The leniency procedure allows a company to reveal to the Competition Authority the existence of a cartel in which it has participated, in exchange for complete or partial exoneration from any penalties (eg, the recent personal hygiene products and yoghurt cases).

The claimant argued that the leniency procedure breaches the principle that offences and penalties must be defined by law, the principle of legal certainty and the right to a fair trial, as it grants the authority excessive discretion by not clearly and objectively fixing the criteria for the granting of leniency, the conditions governing cooperation and the definition of the exoneration rate.

On March 4 2015 the Supreme Court decided not to communicate the QPC to the Constitutional Council on the grounds that it was not new or serious. The court found that the leniency procedure is part of the authority's sanctioning power, and that the extent of exoneration is assessed by a reasoned decision following adversarial proceedings on the basis of objective criteria related to the company's contribution to its individual situation.

This order comes at the right time for the authority. On February 27 2015, in an effort to standardise European leniency procedures, the authority launched a public consultation to gather observations on the conformity of French practices with the European model, to clarify the obligations and actions of companies wishing to benefit from leniency.

For further information on this topic please contact Emmanuelle van den Broucke or Sara Pomar at Dentons by telephone (+33 1 4268 4800) or email (emmanuelle.vandenbroucke@dentons.com or sara.pomar@dentons.com). The Dentons website can be accessed at www.dentons.com.

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