On July 30, 2021, the French Competition Authority (“FCA”) published its revised Fining Guidelines, which repealed and replaced the 2011 guidelines. In June, the FCA had opened a public consultation on a draft, which provided for different changes of the method of calculation of fines. While the Guidelines as published have retained those changes, they also include several more minor ones resulting from the public consultation.
As previously reported, last June, the FCA published a draft of the revised Fining Guidelines. The FCA revised the Guidelines to reflect the goals of Directive (EU) 2019/1 of December 11, 2018 (“ECN+ Directive”). The draft modified the method for calculating fines in order to increase the level of fines that can be imposed by the FCA. In particular, the draft (i) provided for an increased duration multiplier, (ii) introduced the possibility of increasing the fine for “serious” infringements by 15-25% of the turnover taken into account for the basic amount, (iii) added criteria to assess the gravity of the practice (e.g., impact on the environment), and (iv) removed the benefit of the €3 million sanction ceiling for trade associations, replacing it by a maximum of 10% of the association’s turnover or of its members’ total turnover. A public consultation on this draft took place between June 11 and 25, 2021.
Changes Implemented Further To The Public Consultation
While the revised Fining Guidelines contain all the changes proposed in the FCA’s draft, they also include several more minor ones implemented after the public consultation. Below is an overview of those additional changes.
First, for infringement periods of less than a year, the FCA will calculate the amount of the fine on a prorata temporis basis. The FCA adopted a more lenient calculation method than the one proposed in the draft, which provided that periods of less than six months would count as half a year and periods of more than six months would count as a full year for fining purposes. This in line with the European Commission’s Fining Guidelines.
Second, the revised Fining Guidelines specify that the FCA may take into account the undertaking’s value of sales achieved in “upstream, downstream and related markets” when the infringement takes place in a multi-sided market. The FCA’s draft already introduced the idea that the FCA might rely on sales achieved in “directly or indirectly” related markets, but this addition specifies what is meant by “indirectly” related markets. This notion is also in the Commission’s fining guidelines.
Third, the revised Fining Guidelines add two mitigating circumstances which were not in the FCA’s draft. They allow the FCA to reduce the fine when the undertaking proves that (i) it put an end to the infringement as soon as the FCA intervened (except in the case of cartels) or (ii) it effectively cooperated with the FCA, going beyond the obligations to which it is legally subject and outside the scope of the leniency procedure. This addition aligns the FCA’s Fining Guidelines with the Commission’s ones.
Fourth, the revised Fining Guidelines allow the parties to present observations on the factors taken into account for the fine calculation after the hearing. Previously, the parties could submit observations on those factors only in their reply to the case-handlers’ rapport. The revised Fining Guidelines offer an additional opportunity for the parties to present their views, which will be particularly useful in cases where the hearing highlights new considerations on the merits of the case or on the factors to be taken into account for the fine.
Finally, the revised Fining Guidelines reintroduce the obligation for the FCA to motivate its choice to depart from its methodology. While the 2011 Guidelines already provided for such an obligation, the FCA had removed it from its draft. At EU level, the case-law has also recently reinforced the Commission’s obligation to motivate its choice when departing from its guidelines.
The revised Fining Guidelines entered into force the day after publication (i.e., July 31, 2021). They do not indicate to what extent they will apply to current investigations. However, in light of French and European case-law, they will likely be considered to apply to all infringements committed prior to its publication, including all current investigations as long as the parties are given the possibility of submitting observations on the method applied by the FCA to set the fine.
 French Competition Authority, Communiqué de l’Autorité de la concurrence relatif à la méthode de détermination des sanctions pécuniaires, July 30, 2021 (“revised Fining Guidelines”).
 See the June 2021 edition of our French Competition Law Newsletter available at https://www.clearygottlieb.com/-/media/files/french-competition-reports/ french-competition-law-newsletter–june-2021-pdf.pdf
 Directive (EU) 2019/1 of the European Parliament and of the Council to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market, December 11, 2018, OJ L 11. This Directive was transposed into French law by Ordinance No.2021-649 of May 26, 2021. The Directive notably provides that national competition authorities should have the means to impose “effective, proportionate and dissuasive fines”.
 Revised Fining Guidelines, para. 34.
 European Commission Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No. 1/2003, OJ C 210 (“Commission Fining Guidelines”).
 Revised Fining Guidelines, para. 26.
 Draft Fining Guidelines, para. 22.
 Commission’s Fining Guidelines, para. 13.
 Revised Fining Guidelines, para. 37.
 Commission’s Fining Guidelines, para. 29.
 Ibid. , para. 16.
 Fining Guidelines of May 16, 2011, para 18.
 Revised Fining Guidelines, para. 6.
 Fining Guidelines of 16 May 2011, para. 7.
 See e.g., General Court of the European Union (“GCEU”), judgement of November 10 2017, Icap v. The Commission, case T-180/15, ECLI:EU:T:2017:795, para. 289; upheld by the Court of Justice of the European Union, (“CJEU”), in judgement of July 10, 2019, Commission v. Icap, case C-39/18 P.
 See e.g., on the FCA’s 2011 fining guidelines, Paris Court of Appeal, October 13, 2013, Nestlé Purina Petcare France & others, RG No. 2012/07909, upheld by Cour de cassation, Commercial Chamber, March 17, 2015, Nestlé Purina Petcare France & others, No. 13-26.083. See also on the European Commission’s 2006 Fining Guidelines, e.g., CJEU, May 18, 2006, Archer Daniels Midland Co. & others v. European Commission, case C-397/03 P, paras. 20-25.