These originalities are not necessarily condemnable

Modernized ersion o the current Council o competition, the competition authority should be on track this week or the entry into orce no later than early January 2009. I it has been irst reactions mixed, it is that, by compelling elements o modernization, this re orm has ambi alent. Positi e side, it pro ides a better distribution o power competition, shared in a complex manner between the Council o competition on the one hand, the Minister o the economy and the DGCCR another so ar. Thus, the control o concentrations is now (almost) entirely in the hands o the authority, which retrie es the irst part o the procedure and the power o decision. In the same direction, the authority will ha e means o strengthened in estigation and a broader range o solutions to practices anti-competiti e (auto-saisine, alternati e procedures or sanctions, such the "block o the grie ances"). Modern also is the establishment o independent balances within and outside this administrati e authority, such as a more radical separation between education and en orcement, the establishment o a "hearing o icer" and a control a posteriori by the Parliament.

Howe er, this original solution "to the rench", is not without ambi alence and uncertainty. The main question lies in the abandonment o the radical proposal o report Attali to create a competition authority "unique", which would ha e trans erred almost all o the powers o decision o the Minister o Economics in competition. LME gi es it a residual power non-negligible in merger control: it can challenge statement o authority decisions and, abo e all, to re erse the meaning o its inal decision (appro al or prohibition) on the basis o considerations other than drawn rom the competition law. In addition, the dra t order assigns to the DGCCR a new role o treatment and penalties speci ic to the "micro-pratiques anti-competiti e" (those local incidence), which would introduce a parallel regime to that managed by the authority a "dualism" that didn't e en exist until now, and quite original with systems o neighbouring countries. These originalities are not necessarily condemnable. The concerns they raise may be premature, i the Go ernment puts on pro it margins or manoeu re and interpretation a ailable to it, in the texts still to come as in the practical implementation o the re orm.

This would require irst that are better clari ied the respecti e roles o the uture authority o competition and the Minister. In the light o oreign experiences, it is rare that the political authority abandons all power to the authority. Howe er, it is desirable that it separates well what is the de ence o competition (concentrated jurisdiction on the uture authority) rom which other political goals which requires that the Minister could not inter ene, e en at an early stage, competition criteria. Should in addition that the criteria o its inter ention, beyond economic e iciency concerns (entrusted to the authority in the "competiti e balance" o the operation), coincide more clearly with the criteria o "legitimate interests" which, in European law, depart rom the sole objecti e o the competition or under the control o other "hats" o the Minister, like the one on the control o oreign in estmentalso legitimate.

The side o the treatment o "anti-competiti e micro-pratiques", a better articulation is essential between the speci ic powers granted to the DGCCR and the set o anti-competiti e practices management assigned to the competition authority: respect or the rights o the de ence and control a priori or a posteriori o the decisions o the DGCCR by the authority. In addition, that e erything will be resol ed not on the competition authority. On the one hand, it will be necessary to well allocate human and material resources su icient to cope with the increase in its powers. That the College be strengthened o one additional permanent member is not su icient; should at least create a body o "re erendaries" to assist the members o the College. On the other hand, the powers o the authority is highly concentrated, it will not orget to strengthen the internal balances (including the role o the new "hearing o icer") and protect better than be ore the rights o the de ence.