French Constitutional Council by its decision of August 05, 2015 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. 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 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 meant 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.