French Competition Authority: Dismissal in the thermal insulation case

On 14 January 2021 (decision n°21-D-01), the French Competition Authority ("FCA") has ordered a case investigating practices committed by the Centre Scientifique et Technique du Bâtiment (CSTB), the company Saint-Gobain Isover and the Syndicat National des Fabricants d'Isolants en Laines Minérales Manufacturées (FILMM) to be dismissed.

Even though we had to wait twelve years from the date of referral for a decision to be issued by the FCA, the case has already led to interesting developments.  For instance, the French Conseil d'Etat ordered, following FILMM's complaint, the old article R. 464-29 of the French Commercial Code to be repealed (Conseil d'Etat, decision n°367804 dated 10 October 2014), hence leading to the creation of an effective remedy against decisions taken by the FCA's rapporteur general on the protection of business secrecy.  The ECHR also acknowledged, last 5 November, that FILMM did not have an effective remedy with regards to the protection of business secrecy (App no 47499).

Finally ruling on substantive issues, the FCA, in its first decision of the year, provides interesting insights on procedural matters as well as on the notions of exchange of information and of a single, complex and continuous infringement.

Some noteworthy insights in terms of procedure

The FCA had to answer eleven procedural questions, some of which have a significant practical importance:

• the request for a deferral of decision until the decision on an appeal against decisions of the first president of the Court of Appeal on a motion for recusal against the rapporteur is issued is denied;
• the FCA considers itself as not being a jurisdiction and rules inadmissible a preliminary ruling before the French Conseil constitutionnel raised before the FCA.  Even though the solution is similar in terms of preliminary rulings before the ECJ (see ECJ, case C-462/19, 26 September 2020 ; FCA, déc. n°20-D-16 dated 29 October 2020), it is difficult to assess how to reconcile that ruling with the fact that the FCA is qualified as a jurisdiction during a procedure for dismissal on grounds of legitimate suspicion (French Supreme Court, 4 June 2020, n°19-13775);
• the violation of business secrecy and the absence of an effective remedy for FILMM in terms of business secrecy has no incidence on the legality of the procedure before the FCA;
• the lack of impartiality of the rapporteur who acted previously as an investigator (as an agent of the French Ministry of Economics) in the same case is not established (see, as a comparison, Paris Court of Appeal, 24 July 2020, n°RG 20/08006);
• the length of the proceedings (twelve years) is not excessive considering the factual background of the present case; and
• the FCA can send several statements of objections even though there is no new element discovered between the two statements of objections.

The conclusions that the FCA has reached clearly deserve a discussion but will not lead to additional debates in this case, since the FCA has in the end dismissed the objections notified by the investigation services.

A clarification of the notions of exchanges of information and of a single and continuous infringement

With regards to the first objection, which relates to an illicit exchange of information on, mainly, a request for a European technical assessment submitted by Actis and a dispute between Actis and FILMM, the FCA notes that the exchange occurred between actors which are not competitors. Besides, the FCA then finds that the information exchanged does not cover sensitive commercial data.  In this case, obtaining information on technical criteria on a request for a European technical assessment is not considered strategic.  

This solution can be put into perspective with a 2017 decision of the FCA in which the Authority also dismissed an exchange of information case in the car rental sector.  It found that the oligopolistic structure of the market was not sufficient to consider the exchanges as anticompetitive and that the information exchanged on turnovers and on the number of contracts concluded in the past month, which are often considered by nature as particularly sensitive, was not in this particular case strategic (FCA, dec. n°17-D-03 dated 17 February 2017).

With regards to the second objection, on an alleged single, complex and continuous breach with the aim of hindering the entry of thin reflective products onto the thermal insulation market, the FCA finds that there is no anticompetitive plan of action.  Such a plan of action cannot be inferred from the mere existence of concurring positions and interests.  Moreover, the FCA considers that the individual analysis of the practices observed by the investigation services does not lead to any anticompetitive behaviour.