On January 4, 2022, the Cour de cassation confirmed the rulings of the president of the Court of Appeals validating dawn raids carried out in May 2017 by the French Competition Authority (“FCA”) in the rendering sector.[1]

The FCA suspected certain anticompetitive behavior in the form of geographic market allocation following cross asset sales in the rendering sector, and requested court orders allowing it to conduct dawn raids. These dawn raids took place in May 2017.

The companies which were subject to the raids decided to appeal the liberty and custody judge (“LCJ”)’s orders authorizing the dawn raids, claiming that the evidence on which the orders were based related to merger proceedings and not anticompetitive practices.

On November 28, 2019,[2] the president of the Versailles Court of Appeals confirmed the legality of the orders authorizing the dawn raids, finding that whether the practices qualify as merger proceedings or anticompetitive practices was not relevant. The judge in charge of authorizing the raids only need to carry out an overall assessment of the evidence provided by the FCA and determine whether there exists a presumption of anticompetitive practices.

The companies further appealed the orders before the Cour de cassation.

On January 4, 2022, the Cour de cassation confirmed the rulings made by the president of the Court of Appeals. First, it clarified that the mere existence of a potential concentration may not prima facie exclude the LCJ’s jurisdiction. Second, it confirmed that the Court of Appeals only needs to verify the existence of a presumption of anticompetitive practices justifying the carrying out of dawn raids. Conversely, the Court of Appeals is not required, at this stage of the proceedings, to ascertain whether the alleged practices fall within the scope of antitrust or merger control proceedings.

The Cour de cassation found that, having examined the evidence provided by the FCA’s investigation services, the president of the Court of Appeals had, in his own discretion, and based on an overall assessment, ruled that the evidence at hand constituted a sufficient presumption of anticompetitive practices, regardless of the transfer of assets. The president of the Court of Appeals found that the LCJ had relied on statements from customers, farmers, and slaughterhouse managers, whose evidence pointed towards the existence of a presumption of anticompetitive practices.

[1]      Cour de cassation, Criminal division, January 4, 2021, No.20-83.813, No.20-83.815, No.20-83.817.

[2]      Versailles Court of Appeals, November 28, 2019, No.6418 – 6420 – 6432 – 6433/17.