Naming and Shaming: Injunctive Measures Taken by the DGCCRF Can Now Be Made Public

On Dec. 29, 2022, Decree No. 2022-1701 — defining the procedures for publicizing the measures taken pursuant to Book IV of the Commercial Code and Book V of the Consumer Code — was published pursuant to the law of Aug. 16, 2022, relating to emergency measures intended to protect purchasing power. This decree allows the Directorate General for Competition Policy, Consumer Affairs and Fraud Control (DGCCRF) to make public the injunctive measures it issues against companies.

The DGCCRF has an arsenal of dissuasive measures at its disposal; it can, depending on the case, impose administrative sanctions or prosecute companies to seek a criminal conviction. It can also issue injunctions requiring companies to cease an illicit practice or to comply with regulations.

The DGCCRF can implement these corrective injunctive measures in response to various situations — for example, certain anticompetitive practices referred to in Article L.464-9 of the Commercial Code (so called micro anticompetitive practices); restrictive competition practices, pursuant to Article L. 470-1; or consumer fraud, on the basis of Article L 521-1 of the Consumer Code.

The injunctive powers of the DGCCRF were extended by the so called DADDUE law of Dec. 3, 2020, establishing a power of “digital injunction,” which specifically allows DGCCRF agents to order the delisting of a website or a mobile application when the owner of such site or application fails to comply with an initial request to cease such practices.

As of Jan. 1, 2023, the DGCRRF has been able to publish the injunctions it issues, thus disclosing the identity of the companies concerned. Previously, the DGCCRF was permitted to publish only decisions on administrative sanctions (and moreover was required to publish breaches of the regulations relating to payment deadlines).

The decree of Dec. 29, 2022, also specifies, in Articles R. 464-9-1 and R. 470-1 of the Commercial Code, as well as in Article R. 521-2 of the Consumer Code, the different terms of publication that are generally enforced. The published notice can:

• Be published in media, by emailing, by billposting (for up to 2 months) or by publishing in the Official Journal of the French Republic
• Take the form of a press release informing the public of the reasons for and the content of the injunctive measure
• Be accompanied by an awareness-raising message regarding the disputed practices

The form and conditions of the notice must be specified in the injunction.

Finally, when the DGCCRF orders a fraudulent site to be blocked, it can now require online platform operators or internet service providers to refer blocked fraudulent sites to a government webpage informing consumers of the reason for the blocked access.

Our EU Competition and Trade Law team is at your disposal for any further information on this subject.