On 26 May 2020, the Paris Court of appeal ("Court") confirmed the fine imposed by the French Competition Authority ("FCA") on an undertaking for having obstructed a competition investigation.
On 22 May 2019, the FCA adopted its first decision sanctioning a company for having obstructed a competition law investigation. It imposed a fine of EUR 0.9 million on Akka, an engineering and technology consultancy group, in relation to two practices that occurred during dawn raids in November 2018:
- the breach of a seal (which was broken by pure negligence by an employee); and
- the suppression of e-mails received during the investigations by employees.
In its ruling dated 26 May 2020, the Paris Court of appeal confirmed this decision:
- First, it stated that the concept of obstruction should not be construed narrowly. According to the Court, this concept covers any conduct tending to obstruct any act of investigation, whether or not it is intentional or the result of a mere negligence.
- Second, the Court held that a company's liability for an act of obstruction committed by one of its employees was established under the same conditions as its liability for anticompetitive practices committed by its employees, since both relevant provisions of the French commercial code refer to the same concept of "undertaking". This means, according to the Court, that the undertaking's liability may be triggered by the actions of any employee authorised to act on its behalf.
As a consequence, the Court – noting that the wrongful conducts were of particular gravity – confirmed the financial penalty imposed by the FCA.
With thanks to Marie Florent of Ashurst for her contribution.
