Extract
[...] 12-29.166 - In the context of a merger-absorption, do sanctions imposed on the absorbed company automatically transfer to the absorbing company? Does the principle of personalization of penalties prevent the attribution of a civil fine to the company to which the business has been transferred? It is to this apparently thorny question that the Commercial Chamber of the Court of Cassation has responded with its ruling of 21 January 2014. In the context of this dispute, a Carrefour supermarket operated by SAS Carrefour Hypermarchés had been prosecuted by the General Directorate for Competition, Consumer Affairs and Fraud Repression (DGCCRF) for having engaged in anti-competitive practices, notably for having received, under contracts signed with its suppliers, remuneration greater than the profits generated by the latter. [...]
[...] From a general point of view, the advantage of the corporate form is essentially of a legal, tax and financial nature and is a matter for the entrepreneur himself. In this case, in fact, no dispute is raised as to the choice of the type of company adopted by Carrefour or its transfer of the business, but to the fact that the sanctions attached to the first company should, according to the plaintiff, cease at the time of the transfer of the legal entity, which was not the case for the commercial chamber. [...]
[...] Moreover, things seem to become more complex when, as in the judgment in question, the enterprise thus conceived is operated in the form of a company. It is then the company that pursues the economic activity that will have the status of entrepreneur, i.e. the person responsible for the enterprise, economic activity. The company is not so much a technique for organizing the enterprise as a technique for organizing the entrepreneur. This is how every individual entrepreneur asks himself the question of incorporating his business. [...]
[...] Such reasoning seems rigid. What, then, is the will of the High Magistrates when they decide that the sanction should be attached to the company and not to the company that manages it? By such a technique, it allows, on the one hand, to transmit the sanction and thus avoid impunity, but on the other hand, it makes it possible to avoid, through the mechanism of a merger, being able to escape prosecution for offenses relating to discriminatory practices. In the opposite case, in fact, companies could be tempted to commit such offenses while knowing that, in the event of a sanction, they could escape it by being absorbed by another company in the same group. [...]
[...] This means that European law considers as an enterprise any entity that carries out an economic activity, regardless of its financing modality or legal status. This has the advantage of allowing dissociations between the activity carried out and the legal form managing the activity and, thereby, offering a more elastic instrument for the application of the law. It is therefore through such an interpretation, in conformity with European law and the constant case law of the Court of Justice, that the Commercial Chamber was able to dissociate the enterprise from the company and allow a continuity of the sanction, the latter being linked to the activity carried out and not to the company. [...]
