Decree n°2019-1247 of November 28, 2019, published in the Official Journal of the French Republic on November 29, 2019 (the “Decree”), provides the procedural framework for the FCA’s new power to access telephone communications data for the purpose of antitrust investigations under Article L. 450-3-3 of the French Commercial Code. This framework was introduced by the Pacte Law [1] and allows the FCA to request access to technical information regarding the identity of a caller, the telecommunication terminals used, the data, time, and duration of each call, and the phone numbers called. It will be operational as soon as the Data Request Supervisor (“contrôleur des demandes de données de connexion”) is appointed (the Supervisor will be appointed among the judges of the French Administrative or Civil Supreme Court).[2]
The Decree creates five articles (Articles R. 450-4 to R. 450-8) in the French Commercial Code which provide the requirements the FCA’s request must fulfil in order to access to telephone communications data and as well as rules concerning the destruction of the data collected by the FCA.
Requirements to access telephone communications data
Under Article L. 450-3-3, II, of the French Commercial Code, the FCA’s Rapporteur general must request the approval of the Data Request Supervisor before the FCA can access telephone communications data for a specific investigation. The request must specify the basis for the FCA’s suspicions of an infringement and explain why the requested telephone communications data are required for the FCA’s investigation.
Article R. 450-4 of the French Commercial Code sets forth a list of information that the FCA must include in its request. In particular, the FCA must provide the suspected individuals’ names for which access to data appears necessary for its investigation (or the relevant phone numbers and IP addresses); the telephone communication data or type of data requested for each individual; the relevant time period for such data; and “the factual and legal elements that justify this request”.[3]
Article R. 450-5 of the French Commercial Code provides that the FCA must ensure the confidentiality of the collected data.
Destruction of the collected data
Article R. 450-6 of the French Commercial Code recalls that the destruction of the telephone communications data collected by the FCA either six months after a final FCA decision or if the data turns out not to relate to an infringement, as provided by Article L. 450-3-3 of the French Commercial Code. The FCA’s agents must also take minutes establishing the destruction of the relevant data, the FCA’s request to the Supervisor, and the Supervisor’s approval decision.[4]
According to the FCA’s president, this new power constitutes “an additional valuable asset for the effectiveness of the [FCA]’s investigations” and will allow the FCA to take into account the “increasingly sophisticated means to conceal illegal practices”.
[1] Law n°2019-486 of May 22, 2019, Article 212.
[2] As per Article L. 450-3-3, II, of the French Commercial Code, the controlling officer must be either a Conseil d’État or a Cour de Cassation judge. He will be appointed for four years and is entirely independent from the FCA.
[3] Article R. 450-4, I, 4°, of the French Commercial Code.
[4] Article R. 450-6 of the French Commercial Code.