On May 16, 2019, the French Conseil constitutionnel validated most of the provisions of the law on business growth and transformation (“loi relative à la croissance et la transformation des entreprises” or “PACTE law”), but deemed that the provisions relating to the transposition of the ECN+ directive into French law violated the Constitution.
A month after the adoption of the PACTE law by the French Parliament on April 11, 2019, the French Conseil Constitutionnel issued a decision on the compatibility of said law with the Constitution.
The Conseil constitutionnel upheld most of the provisions of the PACTE law, including flagship measures dealing with the sale of the French State’s participation in several key infrastructure companies such as Aéroports de Paris, Engie and La Française des Jeux, even though the French Constitution contains provisions prohibiting the privatization of companies that are in a de facto monopoly or provide service of national economic interest. Interestingly, as regards the privatization of Aéroports de Paris, the Conseil constitutionnel noted that although Aéroports de Paris was dominant in the French airport sector, it was nevertheless subject to the competition pressure exerted by the main regional airports.
The Conseil constitutionnel however invalidated several provisions of the PACTE law as it considered that they had little to no connection with the actual subject matter of the draft law, and were therefore prohibited under Article 45 of the Constitution. The Conseil notably declared that Article 211, which was meant to enable the Government to transpose the European Competition Network Directive into French law and to take any necessary antitrust measures through executive orders (“ordonnances”), was incompatible with the Constitution. By contrast, Article 212, which authorizes agents of the French Competition Authority to obtain telephone and telecommunications technical data (i.e. excluding data relating to the content of communications), was somewhat surprisingly deemed compatible – despite being equally unrelated to the subject matter of the PACTE law.
Following the Conseil constitutionnel’s decision, the PACTE law was enacted on May 22, 2019.