On May 26, 2021, the Council of Ministers adopted Ordinance No. 2021-649 of May 26, 2021 on the transposition of Directive (EU) 2019/1 of the European Parliament and of the Council of December 11, 2018, which aims to provide the competition authorities of the Member States with the means to implement competition rules more effectively and to ensure the proper functioning of the internal market (ECN + Directive) (hereinafter the "Ordinance") . The Ordinance was published in the Official Journal on May 27, 2021.
The major, and expected, change in the Ordinance is the modification of the maximum amount of penalties for professional associations.
This amount is increased from 3 million euros to 10% of the highest worldwide turnover (excluding taxes) achieved during one of the fiscal years preceding the one in which the practices were implemented.
The Ordinance specifies that when the infringement of a professional association relates to the activities of its members, the maximum amount of the financial penalty is no longer the worldwide pre-tax turnover of the professional association, but is equal to 10% of the sum of the total worldwide turnover achieved by each member active in the market affected by the association's infringement.
However, the financial liability of the professional association members is limited with respect to the payment of the penalty.
The amount required from each member of the professional association may not exceed the maximum amount applicable to each personally, i.e., the threshold of 10% of the highest worldwide turnover (excluding tax) achieved during one of the financial years before the financial year preceding the practices, or, if appropriate, of the consolidated or combined accounts turnover of the consolidating or combining undertaking.
The Ordinance also establishes financial liability for professional association members:
Also regarding the sanction, the Ordinance removes from the criteria to set the sanction the notion of "damage to the economy", which was a source of endless questions and debates, and includes in the text the importance of the duration of the infringement (which was in fact already taken into account by the guidelines on determining the penalty).
Finally, the Authority acquires the power to impose structural remedies to offenders of competition law, a power that should a priori be limited to cases of abuse of dominant position.
On the procedural level, the Authority has been given the power to decide whether to prosecute. Until now, the Authority was - in theory - forced to accept all referrals, even if it meant leaving the less well-founded ones in drawers for years.
From now on, it will be able to reject a referral by a motivated decision if it considers that it is not a priority. This power is limited to referrals from companies.
In addition to its power of self-referral in normal proceedings, the Authority has been given the possibility to self-refer in the context of conservatory measures proceedings.
In addition, mainly :
Finally, and as expected, the Ordinance establishes immunity for private individuals in the context of a leniency application. This measure concerns directors, managers and other staff members of the company or association of companies who have taken a personal and decisive part in the conception, organization or implementation of anticompetitive agreements.
In the event of leniency and in case the personal involvement of the companies’ employees involved justifies the transmission of the file to the public prosecutor, the Authority is obliged to indicate to the latter the individuals who should not be criminally prosecuted.
The entry into force of the Ordinance is subject to the adoption of the ratification bill, which must be introduced before Parliament within 3 months from May 26, 2021, i.e. by August 27, 2021 at the latest.
 See in this respect our flash "Professional bodies: the French Competition Authority publishes its thematic study".