Resume: The decision delivered by the Paris Court of Appeal on May 12, 2021 follow the decision of the French Competition Authority (FCA) dated Septembre 9, 2020 (No. 20-D-11). The dispute arose from the communication of this decision by the FCA. Indeed, the company ROCHE S.A.S considers that a manifestly illicit disorder is caused by the excessive and misleading communication made by the FCA. The plaintiff company is appealing to the Paris Court of Appeal. The question then arises as to the competence of the judicial judge to hear this appeal.

To quote this paper: C. HERBERT, “The Paris Court of Appeal declares itself incompetent to judge a dispute concerning the communication made by the French Authority on one of its decision”, Competition Forum – French Insights, 2022, n° 0025, https://competition-forum.com.

I- FACTS AND CONTEXT OF THE DECISION:

By a decision of the FCA dated September 9, 2020 (No. 20-D-11), the companies of the Novatris group and ROCHE were fined 444 million euros for abuse of dominant position on the French market for the treatment of age-related muscle degeneration (AMD).
In the present case, ROCHE S.A.S., by a summons dated May 5, 2021, is seeking an end to the manifestly unlawful disturbance resulting from the biased and misleading communication made by the FCA to the detriment of the companies of the ROCHE group.
ROCHE S.A.S. argues that these communications lack any legal basis and are disproportionate to any public information objective. As a result, they undermine the presumption of innocence of the ROCHE group, which has appealed the decision rendered by the FCA.
The Paris Court of Appeal is asked to order the FCA to cease publication of its decision dated September 9, 2020.
It is requested that the FCA be ordered to mention in any statement relating to this decision the existence of an appeal before the Paris Court of Appeal.
Finally, it is requested to refrain from initiating any action, letter or other form of communication addressed to specifically targeted third parties.

II- ARGUMENTS OF ROCHE S.A.S:

ROCHE argues that the Paris Court of Appeal has jurisdiction to deal with the summary applications it has made under Article 464-8 paragraph 2 of the French Commercial Code, which provides that “the first president of the Paris Court of Appeal may order a stay of execution of the decision if it is likely to lead to manifestly excessive consequences or if new facts of exceptional seriousness have arisen subsequent to its notification”.
According to the applicant, the claims it is making relate to a difficulty in enforcing the decision because the disclosures made by the FCA add a sanction that was not provided in the decision issued on September 9, 2020.

In this case, ROCHE maintains that the fact that the FCA sent a specific letter to the trade union representing pharmaceutical companies on January 5, 2020, constitutes a new fact of particular gravity, requiring the jurisdiction of the Paris Court of Appeal under the aforementioned article.

The purpose of the summons of May 5, 2021 is to put an end to the manifestly unlawful disturbance constituted by the additional sanction resulting from the FCA’s communication concerning the decision.
ROCHE S.A.S. relies on articles L464-8 and R464-22 of the French Commercial Code and on articles 834 and 837 of the French Code of Civil Procedure. It also relies on article 835 al 1 of the CPC, which states that “The president of the judicial court or the judge in charge of protection disputes within the limits of his competence can always, even in the presence of a serious dispute, prescribe in summary proceedings the protective or restoration measures that are necessary, either to prevent imminent damage, or to put an end to a manifestly illicit disturbance. »
Special law and common law texts coexist. According to a constant jurisprudence, the application of the special texts relating to competition law does not exclude that of the common law provided for by the French Code of Civil Procedure.

ROCHE S.A.S. also maintains that the communication by the FCA of the decision of September 9, 2020 beyond its website constitutes an additional administrative sanction within the meaning of Article L464-2 I paragraph 5 of the French Commercial Code, and that this sanction must be provided for in the operative part of the decision and must be motivated.
In this case, no such sanction was pronounced by the FCA. However, it disseminated the content of the decision in the traditional and specialized press as well as on social networks and sent letters to third parties who were not concerned by the practice in question.
This additional sanction, which was not provided for in the decision and for which no reasons were given, created “serious and persistent damage” for ROCHE S.A.S., resulting in a manifestly unlawful disturbance within the meaning of Article 835 of the French Criminal Procedure Code.

The communication made by the FCA is considered as manifestly excessive in its scope and content in the eyes of ROCHE S.A.S. Indeed, all communication media were used to disseminate the decision: press, social networks, video platform and letters were sent to actors of the pharmaceutical sector. In addition, the information communicated contains numerous omissions that give the public a distorted vision.

III- ARGUMENTS OF THE FCA:

The FCA begins by recalling Article L490-11 of the French Commercial Code. Thus, the decisions rendered by the FCA sanctioning anti-competitive practices taken on the basis of Article 464-2 must be made public.
It specifies that the purpose of the FCA’s communicating the decisions is to inform businesses, public authorities and citizens. Thus, the choice of the means of communication allows a relevant dissemination of the information.
It is also allows to inform organizations likely to be interested in the decisions it has delivered. In this case, the fact of communicating the information to the trade union representing drug companies is intended to inform them of the decision rendered in order to facilitate “the implementation by companies or professional organizations of compliance measures”.

The supposed competence of the Paris Court of Appeal to hear this appeal is disputed. Indeed, the FCA is an independent administrative authority that exercises public power. These acts and decisions fall under the jurisdiction of the administrative judge.
However, there are certain exceptions to this principle. Indeed, the legislator has provided for appeals for which the jurisdiction falls to the judicial judge. These cases are listed in articles L464-7 and L464-8 of the Commercial Code.

What about the decision rendered by the Tribunal des conflits on October 5, 2020:

The Tribunal des conflits has admitted that the judicial judge has jurisdiction to hear decisions that are not detachable from decisions whose litigation falls within its jurisdiction.
This decision recognizes the jurisdiction of the Paris Court of Appeal to examine a request to order the FCA to republish a decision by removing the data for which the protection of business secrecy had been obtained during the investigation.

The jurisdiction of the Paris Court of Appeal is justified here by the inseparability of the FCA’s decision and the limitation or not of its publicity.

Thus, the jurisdiction of a court of law is recognized when the court of law is called upon to rule on decisions of the FCA that are not detachable from decisions whose litigation falls within its jurisdiction.

In the present case, ROCHE S.A.S. requests that FCA be enjoined to cease all communication relating to its decision of September 9, 2020 and to mention in any communication the existence of an appeal before the Paris Court of Appeal. In addition, the FCA is requested to “refrain from initiating any approach, letter or other form of communication addressed to specifically targeted third parties”.

Thus, the measures alleged by ROCHE S.A.S. do not constitute requests that the First President of the Paris Court of Appeal may prescribe in the context of an appeal filed on the basis of Article L464-8 of the French Commercial Code.

The acts of which the FCA is accused by ROCHE S.A.S. do not fall within the exceptions provided for by the legislator allowing the jurisdiction of the judicial judge and are not indissociable. Therefore, the dispute falls within the jurisdiction of the administrative judge.

On the existence of a manifestly unlawful disturbance within the meaning of article 835 of the French Code of Civil Procedure: The communication made by the FCA does not constitute such a disturbance, because it is part of “a homogeneous practice at the European and international level and is neither truncated nor incomplete”. Indeed, the dissemination of a video on social networks is part of a policy of adaptation to new means of communication.
Moreover, the video published refers to the decision of the FCA published on its website and the press release attached to it. Thus, the reader is able to know the content of the decision.
The website mentions the existence of an appeal before the Paris Court of Appeal. Therefore, no damage to the image of ROCHE S.A.S. or to the presumption of innocence can be invoked.

IV- DECISION OF THE PARIS COURT OF APPEAL:

1- Inadmissibility of the claim based on articles L464-8 and R464-22 of the Commercial Code

The Paris Court of Appeal began by recalling the provisions of Article L464-8 of the French Commercial Code. This article provides that “the decisions of the Competition Authority referred to in 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 of the Economy, who may, within a period of one month, lodge an appeal for annulment or reversal with the Paris Court of Appeal.
The appeal does not have suspensive effect. However, the first president of the Paris Court of Appeal may order a stay of execution of the decision if it is likely to lead to manifestly excessive consequences or if new facts of exceptional seriousness have arisen subsequent to its notification.”

In this case, ROCHE S.A.S. is not requesting a stay of execution of an injunction issued by the FCA on September 9, 2020.

Thus, the request based on articles L464-8 and R464-22 of the French Commercial Code is inadmissible.

2- Lack of jurisdiction of the Paris Court of Appeal to hear the appeal lodged by ROCHE S.A.S

Regarding the challenge to the communication of the decision rendered by the FCA. The dispute does not fall within the jurisdiction of the court. Indeed, the communication of the decision constitutes, in this case, the implementation of the FCA’s communication policy and cannot be considered from a legal point of view as a decision ordering publication.

The Court of Appeal affirms that the methods of communication of a decision of the FCA are subject to a specific legal regime that is dissociable from the decision itself. Thus, the dispute falls under the jurisdiction of the administrative judge.

The Paris Court of Appeal therefore declares that it has no jurisdiction to rule on the claims presented by ROCHE S.A.S.

HERBERT Charlène

SOURCES:
– Revue Lamy de la concurrence, Nº 106, June 1, 2021 “Un an de Droit de la concurrence dans le(s) de la santé (2020/2021)”. By: Adrianne SALAÜN Magenta Lawyer and Gaël HICHRI.
– Decision 20-D-11 of September 9, 2020 by the FCA
– Contrats Concurrence Consommation n° 11, November 2020, comm. 164 – Sanction of an abuse of a collective dominant position in the pharmaceutical sector – Comments by D. BOSCO
– Revue Lamy de la concurrence, Nº 100, December 1, 2020 – Competence of the court to rule on the publicity in a decision of precautionary measures of data covered by the business secret
– Tribunal des Conflits, 05/10/2020, C4193