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98Legal FocusAPRIL 2013A Guide to Competition Law forForeign CompaniesIn keeping with our guide to competition law for foreign companies,we take a look from a French perspective, and in particular, the sectorinquiries that the French Competition Authority has announced it willconduct this year. To this end, Lawyer Monthly speaks to Anne Servoirfrom one of France’s leading competition law firms, Intuity.Please describe briefly the main provisionsregulating competition in FranceThe two main types of infringements areanti-competitive agreements betweencompanies (articles 101 of the TFEU and L. 420-1of the Commercial Code) and abuses ofdominant position (articles 102 of the TFEU and L.420-2 of the Commercial Code). Competitionlaw is enforced by the Competition Authority, anindependent collegial institution, which replaced,in 2009, the former Competition Council.It is vested with the full spectrum of competitionregulatory and enforcement powers.Since 2009, competition investigations aremostly conducted by the investigators of theCompetition Authority, under the sole supervisionof the chief case-handler.Nevertheless, the minister of economy retainscertain powers regarding merger control.In case of competition law infringements, theCompetition Authority can impose on companiesinterim measures, injunctions or penalties of up to10 % of their consolidated global turnover.What is your opinion on the sector inquiries theFrench Competition Authority announced it willconduct in 2013?The two sectors concerned by the inquiries are, onthe one hand, the pharmaceutical sector and, onthe other hand, the coach transport sector.Under French Law, those inquiries are part ofCompetition Authority’s “advisory” competences.In this regards, the Authority has the power toinitiate the inquiries on its own in order to “renderan opinion on any matter related to competition”.In France, sector inquiries are conductedinformally since the procedure itself is notdescribed by the Code. Generally, the firststep would consist in the Authority sendingquestionnaires to the concerned parties. It maythen hear some of them.For both inquiries, the Competition Authorityindicated that it will publish its preliminary reportin order to gather the stakeholders remarks beforerendering its final opinion on its findings. Theopinion may also contain recommendations tothe stakeholders or to the Government toimplement legal measures aiming at improvingcompetition in the concerned sectors.What impact will these inquiries have on thesectors concerned?Although the inquiries do not constitutecontentious procedures by themselves, theyare a sign of the “interest” of the CompetitionAuthority for the sectors concerned. They are alsoa way, for the Authority, to gather an extensiveamount of information, it can then use toopen contentious procedures against someof the undertakings in these sectors during orafter the inquiries themselves, as did theEuropean Commission in 2008 and 2009 in thepharmaceutical sector.In the opinion it publishes after the inquiry, theAuthority does not take position regardingconformity with competition of individualbehaviors. However, the opinion is aimed to beused as guidance by the stakeholders and asquasi case law by the Authority in the frameworkof subsequent contentious matters. It is thusessential, for the undertakings consulted to payclose attention to the answers they formulateorally or in writing.Regarding the pharmaceutical sector, theAuthority announced it will investigate each levelof the pharmaceutical supply chain:• the pharmaceutical firms, especially pricesand the way originator firms handle genericpre-entry phase,• the wholesalers, in particular the possibleimpact of direct sales on wholesalers and theirrole regarding imports/exports on prices, and• the pharmacies, especially their behaviorregarding reimbursable or non-reimbursablemedicines.www.lawyer-monthly.com