The Competition Authority is now authorized to seize the “fadettes” of managers and their advisers in its investigations. Seizure of the Public Prosecutor’s Office, police custody, wiretapping, it strengthens its powers, to the dismay of business councils who appeal to politics.
Who did they call? Where did they stop? How frequently ? In the midst of the merger operation, the cell phones of executives and their advisers will now be open book for Competition Authority inspectors. The Constitutional Council validated last month access to “fadettes”, these detailed invoices used mainly by the police, for the benefit of antitrust. A provision that he himself had revoked in the Macron law of 2015 in the name of the right to respect for private life.
“This decision has serious consequences! a lawyer is indignant. It allows the entry of privileged correspondence between a manager and his counsel, at a time when the Competition Authorityregularly transforms visit operations and their seizures into a veritable exploratory investigation ”.
This new intrusion capacity is in fact coupled with a criminalization of competition law. This is what worries businesses. The French Authority, recently, made no secret of having assisted a criminal judge to conduct searches in several sectors. These would be those of electrical equipment and water, according to market sources.
Operations that can lead to police custody, “Which is quite traumaticfor merger cases ”, said a source. Besides that“In criminal law even wiretapping or recordings, inadmissible in civil law, can serve as evidence”, underlines a source. Hence the extreme tension on the famous “fadettes”.
The powers of the Competition Authority do not stop there. The authority no longer hesitates to make use of article 40 of the Code of Criminal Procedure to report offenses to the Public Prosecutor’s Office. In two years, she used it four times, where since 1986 she had contented herself with simple transmission of files (ten in total), without participating in searches or necessarily asking to access documents reserved for the single file. criminal.
Less recourse possible
“During criminal searches, the possibilities of recourse for companies are fundamentally modified, a lawyer is also indignant. As long as an act of instruction [mise en examen, contrôle judiciaire] has not been taken by a judge, they will not be able to appeal. In the meantime, investigators will be able to seize the documents they wish without limiting themselves or making an inventory. “.
Competition authorities are embarking on big data
Like the United States, competition authorities in Europe are increasingly digging into internal companies’ emails, according to an Allen & Overy report. ” The objective of the competition authorities is to capture the strategic intentions of the players, as opposed to the “organized” vision presented in the notification of the transaction to the authorities. », Indicates this study. To control the acquisition of Monsanto by Bayer, Brussels seized 2.7 million internal documents. Masses that lead the authorities to engage in artificial intelligence to analyze them.
And whose consequences are heavy. By relying on internal documents for the Dow / Dupont merger, the Commission forced Dupont to sell all of its research division.
“France is taking the path of double punishment in competition matters: it imposes fines on companies and its procedures can also result in criminal convictions”, add this lawyer. The United States has chosen to go to court, while in Europe the norm is financial sanctions., “But not both! “.“It would be desirable for the public authorities to look into the subject”, even consider this advice. And another to call back : “Before, the competition services were a simple office of the Ministry of Finance …”.
But some in the administration do not hesitate to point out that criminal law has certain advantages over the traditional administrative procedure of the Competition Authority: “You have the right to remain silent ..”.