On March 25, 2022, the French Conseil constitutionnel held that the provisions of Article L.470-2, paragraph VII of the French Commercial Code, which provide for the cumulative enforcement of penalties imposed on the same person for multiple breaches regarding restrictive trade practices, are in compliance with the French Constitution.
In 2020, the French Directorate General for Competition Policy, Consumer Affairs and Fraud Control (“DGCCRF”) imposed several fines on Eurelec Trading, the European central purchasing agency jointly owned by French company E.Leclerc and German group Rewe, for a total amount of 6.34 million euros for failing to comply with the statutory deadline for concluding commercial negotiations in respect of 21 supplier contracts. Separately, ITM Alimentaire International was also fined for the same practices for a total amount of 19.20 million euros.
Eurelec Trading decided to challenge the constitutionality of Article L.470-2, paragraph VII of the French Commercial Code. ITM Alimentaire International subsequently intervened in support of the claim.
First, the parties argued that the provisions of Article L.470-2, paragraph VII of the French Commercial Code breached the principle of proportionality in that they failed to provide for any cap on the maximum penalty that can be imposed on the same person who accumulates several administrative penalties imposed for “concurrent breaches”. Second, they argued that such provisions infringed the principle of legality of criminal offenses and penalties by failing to define what constitutes “concurrent breaches”. Finally, the parties argued that the provisions resulted in double jeopardy.
The Conseil constitutionnel’s ruling
In its ruling, the Conseil constitutionnel held that Article L.470-2, paragraph VII of the French Commercial Code complies with the French Constitution and dismissed Eurelec Trading’s claims.
It ruled that (i) there is no constitutional provision prohibiting the accumulation of penalties for distinct infringements, (ii) Article L.470-2, paragraph VII of the French Commercial Code is not intended to determine the amount of the penalties incurred for each anticompetitive practice, and (iii) the provisions do not prevent the administrative authority from taking into account the nature of the infringements, their seriousness and their repetition in order to determine the appropriate penalty amount, in particular when they apply cumulatively. Finally, the Conseil constitutionnel dismissed the claim that the provision constituted double jeopardy because the various penalties related to different infringements.
 Conseil constitutionnel, no.2021-984, March 25, 2022.
 Law no.2016-1691 of December 9, 2016 on transparency, the fight against corruption, and the modernization of economy (known as the “Sapin 2 Act”) enshrines the cumulative enforcement of administrative penalties imposed on the same author of multiple infringements and removes the cap formerly laid down in Article L. 465-2, paragraph VII of the French Commercial Code.