Les contrats économiques de souveraineté, outils de la régulation de la Concurrence (les pratiques des autoritéS de concurrence À partir de l'exemple de la France)

Abstract

In a globalized market economy, concentration and economic organization are the result of two combined elements: private economic power's strategies and public policy instruments of competition law. Over the past decade, the US and the EU competition law have undergone a range of substantive reforms. A wave of reforms has just been passed. These reforms, which will significantly remould the institutional architecture of the competition systems around the world, cover areas such as the promotion of private enforcement, settlements and leniency procedures for hardcore infringements, commitment decisions, market inquiries and informal regulations. In order to promote competitive markets, leniency programs and commitments are the new regulatory instruments used by competition authorities. Instead of sanctions and fines, competition authorities and judges prefer to use various procedural mechanisms based on commitments in order to fight hardcore cartels, abuses and to promote competitive markets. These arrangements constitute what can be termed as « economic sovereignty contracts ». These new types of contracts haven't been thoughtfully analyzed yet in the scholarship. This paper analyzes the real consideration in these contracts, which is, as defined in Chinese law, « the purpose of realizing certain economic goals ». To encourage a firm to confess or to stop an anticompetitive practise, enforcement agencies may promise a smaller fine, shorter sentences, less restrictive orders, or complete amnesty. In contract law, the mutual consideration is not only the different promises between the parties. It's the operation as a whole, which is the organization or planning of the economic power as a result of a merger or a reinforcement of private firms' power under the control of agencies, in accordance with economic public policy rules. Public economic rules may change in light of political concerns. Formally, States are sovereign. Substantially, they may choose to surrender part of their sovereignty ; in the case of arbitration for instance. A part from these new economic contracts, leniency programs and commitments have a relative efficiency. With regard to these contracts, the question arises as to whether they are legally and fully binding. What can first be noticed is how important time and a proper enforcement mechanism are important in these types of contracts. Often, indeed, remedies proposed by firms to agencies need to be monitored ; by a trustee for instance. Furthermore the enforcement mechanism used in these kinds of contract (trust or reciprocity) has an impact of the likelihood of their success.