On March 23, 2023, the French Cour de cassation ruled that requests to restrict the French Competition Authority’s (“FCA”) communication actions relating to a fining decision qualify as applications for interim relief under Article L.464-8 of the French Commercial Code and therefore can validly be brought before the Paris Court of Appeals.[1] 

Background

On September 9, 2020,[2] the FCA imposed a 385 million euro fine on Novartis and a 59.7 million euro fine on Roche for allegedly abusing their collective dominant position on the French market for the treatment of age-related macular degeneration (“AMD”).  Concomitantly with the publication of the fining decision and accompanying press release, the FCA published a 1’40 video, for the first time, summarizing the key findings of its decision, available in both French and English on several media and social media platforms (i.e., YouTube, LinkedIn, and Twitter).  Roche and Novartis appealed the decision on the merits. 

In January 2021, the FCA sent a letter to the union representing pharmaceutical companies informing it of the decision.  A few weeks later, Roche brought an application for interim relief before the First President of the Paris Court of Appeals, requesting that the Court order the FCA to stop all communication relating to the fining decision and, in the alternative, to specify in all existing communications that an appeal against the decision was pending and to stop notifying other third parties about its decision.  Roche claimed that the FCA’s video and letter to the union (i) constituted an additional penalty devoid of any legal basis and manifestly disproportionate to the objective of informing the public, (ii) were harming Roche’s image and financial interests as well as Roche’s presumption of innocence, and (iii) breached the FCA’s obligation of discretion and duty of reserve. 

In May 2021, the Paris Court of Appeals declined jurisdiction, considering that the matter fell within the administrative jurisdiction because the communications were not inseparable from the fining decision.[3]  Roche appealed.  In January 2022, the French Cour de cassation stayed the proceedings and referred the case to the Tribunal des Conflits,[4]whichruled that the Paris Court of Appeals has jurisdiction over the communications insofar as they were published concomitantly with, and related solely to, the fining decision.[5] 

The case was then referred to the French Cour de cassation, which was to judge whether Roche’s request to order the FCA to stop communicating on the fining decision qualified as an application for interim relief under Article L.464-8 of the French Commercial Code.[6]  This provision allows the First President of the Paris Court of Appeals to suspend the enforcement of an FCA decision if it is likely to have “manifestly excessive” consequences.

The ruling of the French Cour de cassation

The French Cour de cassation held that a request to restrict communications relating to an FCA decision is inseparable from the decision itself and, therefore, qualifies as an application for interim relief under Article L.464-8 of the French Commercial Code.  Therefore, the First President of the Paris Court of Appeals is competent to review that request and can order the FCA to limit or amend its communications concerning the decision, provided that the appellant demonstrates that the communications in question are likely to have “manifestly excessive” consequences.

Take-aways As the FCA is seeking to publicize its decisional practice more broadly, the ruling of the French Cour de cassation provides useful clarification.  It is now clear that companies sanctioned by an FCA decision will be able to apply for interim relief before the First President of the Paris Court of Appeals to challenge the FCA’s communications concerning the decision.

[1] French Cour de cassation, Commercial Division, March 23, 2023, No. 21-16.868.

[2] FCA Decision No. 20-D-11 of September 9, 2020 regarding practices implemented in the treatment of age-related macular degeneration (AMD).

[3] Paris Court of Appeals, May 12, 2021, No. 21/02163.

[4] French Cour de cassation, Commercial Division, January 5, 2022, No. 21-16.868.

[5] French Tribunal des Conflits, April 7, 2022, No. 04242.

[6] Article L.464-8 of the French Commercial Code: “FCA decisions mentioned at Articles L. 462-8, L. 464-2, L. 464-3, L. 464-6, L. 464-6-1 and L. 752-27 are notified to the parties involved and to the Minister in charge of the economy, who may, within a period of one month, lodge an appeal for annulment or reversal with the Paris Court of Appeals.  […] The appeal does not have suspensive effect. However, the First President of the Paris Court of Appeals may order a stay of execution of the decision if it is likely to lead to manifestly excessive consequences or if, after its notification, new facts of exceptional gravity have occurred.”