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Press Release

Fieldfisher obtains the invalidation of article L. 462-4 V, 2nd paragraph, of the Commercial Code by the Constitutional Council

01/04/2021

Locations

France

Our Competition team, composed of Anne-Laure-Hélène des Ylouses, partner, Clément Hubert, Lauren Mechri, and Paul Peyret from the public law team, associates, has just won a major victory for the firm by obtaining that the Constitutional Council (le Conseil constitutionnel) strike down Article L. 462-4 V, 2nd paragraph, of the French Commercial Code, which was the legal basis for the Competition Authority to sanction the AKKA group for "obstruction" practices that occurred during dawn-raids in its premises.
 
For the record, the AKKA group was fined 900,000 euros by the Competition Authority in 2019 for the of breaking seals and altering of an email chain by two of its employees during dawn-raids in its premises in Boulogne-Billancourt and Mérignac. This decision to impose sanctions was confirmed by the Paris Court of Appeal in 2020, whose decision was appealed to the Supreme Court (Cour de cassation). It was during the proceedings before the Cour de cassation that we obtained that the court transmit a priority preliminary question (question prioritaire de consitutionnalité also known as "QPC") to the Constitutional Council concerning the article of the Commercial Code allowing the Competition Authority itself to sanction the practices of "obstruction" which occurred during its own investigations, for up to 1% of the company's worldwide turnover.
 
The decision rendered by the Constitutional Council on Friday 26 March declares Article L. 462-4 V, 2nd paragraph, of the Commercial Code contrary to the Constitution in its entirety on one of the grounds, as we had argued, of cumulating proceedings with Article L. 450-8 of the Commercial Code relating to the offence of obstructing the duties of the Competition Authority's agents, which the Council considered to be in breach of the principle of the necessity of offences and penalties.
 
It is therefore a great satisfaction for the client and for the team to get this law struck down, as this is extremely rare in general, and the first time for a provision of competition law.
 
For the details, we refer you to the full decision and to the video of the hearing before the Constitutional Council, available on the Council's website.
 
 

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