On December 21, 2023, the Paris Court of Appeal (the “Court”) upheld the French Competition Authority’s (“FCA”) decision to jointly and severally fine Mayotte Channel Gateway (“MCG”) as the author of the infringement, and Société Nel Import Export (“SNIE”) as its parent company, for obstructing the investigation by willfully and repeatedly failing to respond to an information request (the “Decision”).[1]


In 2018, the FCA launched an investigation against MCG in relation to practices carried out in the maritime transport sector in Mayotte.[2]  On December 14, 2020, the FCA issued an information request, providing MCG with a six-week deadline to respond.[3]  The FCA sent three reminders,[4] two penalty notices,[5] and offered two deadline extensions[6], but MCG did not reply.

The FCA subsequently issued an obstruction report on June 23, 2021, leading to decision n°21-D-28[7] which imposed a joint and several fine of 100,000 euros on MCG and SNIE for having obstructed the investigation.[8]

The FCA decision was upheld by the Court, which confirmed that (i) by deliberately refusing to respond to the information request, MCG had obstructed the investigation and (ii) a 90% equity stake was sufficient to establish a presumption of decisive influence.

A deliberate refusal to respond to an FCA information request constitutes obstruction

The Court found that a deliberate refusal to respond to an FCA information request constituted obstruction by relying on Article L. 464-2, V of the French Commercial Code,[9] which provides that refusal to provide the information or documents requested within the prescribed timeframe, or failure to rectify an incorrect or incomplete response constitutes obstruction since it impedes the FCA’s investigative powers. 

The Court also found that the information request was not substantively excessive nor was the deadline to comply.[10]  It concluded that the practices should be examined as a deliberate refusal to respond to information requests, thereby constituting an obstruction.[11]

A 90% equity stake is sufficient to presume decisive influence

In line with standard practice, a parent company is presumed to exercise decisive influence over its subsidiary when it holds all, or nearly all, of its equity.[12]  SNIE claimed that a 90% stake was not sufficient.

The Court clarified that neither domestic nor European case law has defined a specific equity threshold to establish the presumption of decisive influence.[13]  The presumption, according to the Court, does not hinge on holding the entirety or almost all of the subsidiary’s equity, but rather on the level of control exercised by the parent company,[14] i.e. its ability to impede the autonomy of the subsidiary on the market.[15] 

In the case at hand, the Court determined that SNIE’s 90% stake in MCG implied a substantial degree of control, leading to the presumption that SNIE dictated the subsidiary’s economic and commercial strategy,[16] such that it was up to SNIE to rebut the presumption.

[1]           Paris Court of Appeals, judgment of December 21, 2023, No. 22/00474.

[2]           Decision, para. 1.

[3]           Decision, para. 5.

[4]           Decision, paras. 6, 9 and 12.

[5]           Decision, paras. 11 and 14.

[6]           Decision, paras. 8 and 11.

[7]           FCA Decision No. 21-D-28 of December 9, 2021, regarding the implementation of Article L. 464-2 V of the French Commercial Code with respect to Mayotte Channel Gateway SAS’ obstruction of the FCA’s investigation.

[8]           Decision, paras. 66 and 74.

[9]           Under Article L. 464-2 of the French Commercial Code, “[w]here a company [‘] has obstructed the investigation or inquiry, in particular by providing incomplete or inaccurate information, or by communicating incomplete or distorted documents, the [FCA] may, at the request of the Rapporteur General, and after hearing the company in question and the Government Commissioner, decide to impose a financial penalty”.

[10]         Decision, para. 75.

[11]         Decision, para. 84.

[12]         Court of Justice, Case C-595/18, para. 32.

[13]         Decision, para. 110.

[14]         Decision, para. 111.

[15]         Decision, para. 112.

[16]         Decision, para. 120.