On May 22, 2019, the French Competition Authority (“FCA”) fined the Akka Group €0.9 million for obstructing its investigations into a suspected cartel in France. This decision is only the second such sanction by the FCA, and the first for breaking seals.
On November 8, 2018 the FCA raided two sites of the Akka Group located in Boulogne-Billancourt and Mérignac, France. The Akka Group provides engineering services and technical consulting services to small, medium, and large enterprises globally. During the raid of the Mérignac site, in order to avoid attracting the attention of the agents of the FCA, an employee intentionally removed from an internal email chain another employee, whose computer was being searched by the FCA agents. The employee also admitted to deleting several emails from his computer. Separately, at the Boulogne-Billancourt site, the FCA found that an affixed seal on an office door had been broken by an allegedly negligent employee. The FCA subsequently seized only one paper document from the office in question.
The FCA found that these initiatives taken by Akka’s employees constituted unlawful obstruction of its investigative powers.
The Akka Group’s defense
First, the Akka Group contended that the obstruction prohibition of Article L. 464-2(5), 2° of the French Commercial Code does not cover the breaking of seals and the refusal to cooperate with the FCA during a raid, as they are not listed in the provision. In line with its previous decisional practice, the FCA rejected this argument by explaining that the listed practices are not exhaustive. According to the FCA, any behavior, whether intentional or not, which obstructs or delays the conduct of the investigation, may constitute an obstruction. The FCA also noted that the French prohibition should be interpreted in light of its EU equivalent–which expressly mentions refusal to cooperate and the breaking of seals among the prohibited practices.
Second, the Akka Group claimed that it did not intentionally obstruct the FCA’s investigations because the employee who broke the seal was allegedly looking for sweets and was therefore only negligent. The FCA considered, however, that obstruction need not be intentional, absent any precisions on the requisite element in French law.
Third, the Akka Group also argued that obstruction is already punishable under criminal law and that the FCA could not sanction the same practices under competition law. The FCA, however, noted that in line with French Constitutional Court case law, the offence may be sanctioned under both criminal and competition law.
Rejecting all arguments put forward by the Akka Group, the FCA thus concluded that both practices constituted obstruction.
The FCA fined the Akka Group €0.9 million. In determining the fine, the FCA underlined the gravity of the infringements and concluded that the Akka Group’s subsequent cooperation to retrieve the deleted emails did not mitigate the risk that such emails could have been permanently deleted. However, the FCA did take into account the Akka Group’s instructions to its employees not to break the seals and their internal investigation report on the infringements, which Akka provided to the FCA.
The decision confirms the increasing scrutiny by French competition authority of the complete and truthful nature of the information provided in competition law procedures. On December 21, 2017, the FCA fined Brenntag €30 million for obstructing its antitrust investigations by providing incomplete, imprecise, and delayed information, refusal to provide information, and delaying strategies. Unlike Brenntag’s, the Akka Group’s infringements do not seem to have deprived the FCA of information, and were also not sustained over time. In comparison, despite the gravity of the infringements, the Akka Group’s collaboration with the FCA appears to have been taken into account.
 FCA Decision n°19-D-09 of May 22, 2019 and press release of November 9, 2018. Under Article L. 464-2(5), 2° of the French Commercial Code, the FCA may impose a fine on an undertaking subject to an investigation that “obstructed the investigation or inquiry, including by providing incomplete or inaccurate information, or by providing incomplete or distorted documents” (courtesy translation).
 See FCA, Decision n°17-D-27 in relation to obstruction practices of Brenntag of December 21, 2017 (“Decision n°17-D-27”).
 Decision n°17-D-27, op. cit., paras. 187.
 Article L. 464-2(5), 2° of the French Commercial Code only mentions two practices: (i) providing incomplete or inaccurate information and (ii) providing incomplete or distorted documents.
 See Regulation 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (“Regulation 1/2003”), Article 23(1) (d) and (e). Article 23 sanctions the following behaviors, whether intentional or negligent: (i) the supply of incorrect, incomplete, or misleading information, (ii) the supply of information outside of the required time-limit, (iii) the supply of books or other records related to the business in incomplete form, (iv) the failure or refusal to provide a complete answer on facts during an investigation, and (v) the breaking of seals.
 See French Constitutional Court, Decision n°2016-552 QPC of July 8, 2016, para. 7.
 Decision n°17-D-27, op. cit.