NEGOTIATION IN ALGERIAN COMPETITION LAW: THE SPECIFICITY OF THE PROCEDURE
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Abstract
Notwithstanding its punitive nature, competition law nonetheless opens a doorway for negotiation. The process of this negotiation intrudes - de jure - into the traditional powers of enforcement. In this regard, the Algerian legislator drew inspiration from its counterparts, notably the French and European Community legislators, who have already highlighted specific alternative forms that frame this rather novel negotiation. However, the Algerian procedure is partially and partially distinct.
This study aims to provide an understanding of the reality of the potential existence of negotiation within Algerian competition law, by showing and/or demonstrating its actual positioning, even its specificity.
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References
Costina and J.-P. Tropéano, "Negotiating Remedies: Revealing the Merger Efficiency Gains," International Journal of Industrial Organization, vol. 27, 2009, pp. 188-196.
In this regard, it concerns these prohibited practices provided by Ordinance 03-03 related to competition, Official Journal of the People's Democratic Republic of Algeria (JORADP) No. 46 of September 20, 2003 (amended and supplemented by laws No. 08-12, JORADP No. 36 of July 2, 2008, and No. 10-05, JORADP No. 46 of August 18, 2010), in articles 6 and following of the Algerian Competition Law: cartels (art. 6), abuse of dominant position (art. 7), monopoly distribution in the market (art. 10), abuse of economic dependence (art. 11), and predatory pricing (art. 12).
Commission Communication concerning non-imposition of fines or reduction of their amount in cases relating to cartels, Official Journal of the European Communities (JOCE) C 207 of July 18, 1996, p.4.
Applied in the United States since 1978 after the establishment of the U.S. Leniency Program. Redefined and expanded in 1993 and 2004.
The Second Commission Notice on immunity from fines and reduction of fines in cartel cases, JOCE C. 45 of February 19, 2002.
The Third Commission Notice on immunity from fines and reduction of fines in cartel cases, JOCE C. 298 of December 8, 2006.
The Fourth Commission Notice on immunity from fines and reduction of fines in cartel cases, JOCE C. 256 of August 5, 201X.
Ordinance 03-03, as amended and supplemented.
Article 60 of the amended and supplemented Ordinance 03-03 clearly states that the investigation is already initiated by the competition council and makes no reference to the prior leniency request made by the reporting company or to the leniency notice issued by the competition council: "the competition council may decide to reduce the amount of the fine or not to impose a fine on companies that, during the investigation of the case concerning them, admit the offenses they are accused of, collaborate in expediting it, and commit not to commit any further offenses related to the application of the provisions of this ordinance..."
Mediterranean Agreement establishing an association between the People's Democratic Republic of Algeria on the one hand, and the European Community and its Member States on the other hand, signed in Valencia in April 2002, entered into force on September 1, 2005, available at: http://eeas.europa.eu/delegations/algeria/documents/eu_algeria/accord_association_new_fr.pdf
R. Boukroufa, "Abuse of Dominant Position in Algerian Competition Law, Definition, Analysis, and Methodological Approach," communication presented at the thematic workshop of the competition council - program to support the association agreement P3A, Algiers, May 22, 2013.
Article 3, point (C), of the amended and supplemented Ordinance 03-03 related to competition: "For the purposes of this ordinance, it is understood that... C) Dominant position: the position allowing a company to hold, in the relevant market, a position of economic power that gives it the ability to obstruct the maintenance of effective competition, by providing it with the opportunity for independent behavior to a considerable extent vis-à-vis its competitors, customers, or suppliers."
J. CH. Roda, La clémence en droit de la concurrence. Étude comparative des droits américains et européens, PUAM, 2008.
Law No. 2015-990 of August 6, 2015, for growth, activity, and economic equal opportunities, known as the "Macron Law," Official Journal of the French Republic (JORF) No. 0181 of August 7, 2015.
Article 218 of the aforementioned Macron Law, amended Article 464-2 IV of the French Commercial Code.
In this sense, the Algerian Constitution of 1996, JORADP No. 76 of December 8, 1996, amended by Law No. 02-03 of April 10, 2002, JORADP No. 25 of April 14, 2002, Law No. 08-19 of November 15, 2008, JORADP No. 63 of November 16, 2008, and Law No. 16-01 of March 6, 2016, JORADP No. 14 of March 7, 2016, particularly Article 188 stating: "The Constitutional Council may be seized of a constitutionality exception on referral from the Supreme Court or the Council of State, when one of the parties in the case argues before a court that the legislative provision on which the outcome of the dispute depends infringes the rights and freedoms guaranteed by the Constitution. The conditions and modalities of implementation of the above paragraph are determined by an organic law." Similarly, in the new constitution of 2020, which states that "the constitutional court may be seized of a constitutionality exception on referral from the supreme court or the council of state, when one of the parties in the dispute argues before a court that the legislative or regulatory provision on which the outcome of the dispute depends infringes upon their rights and freedoms as guaranteed by the constitution. When the constitutional court is seized under the above paragraph, its decision shall be rendered within four (4) months following the date of its referral. This period may be extended only once for a maximum of four (4) months, upon a reasoned decision of the court, notified to the referring court."
This is Law No. 2008-776 of August 4, 2008, on the Modernization of the Economy.
This is the law on New Economic Regulations, published in the Official Journal on May 15, 2001, and more commonly referred to as the NRE law. Its goal is to reduce the negative effects of internal dysfunctions and globalization. Based on the requirement for transparency of information, this law stipulates that French listed companies must present in the annual management report, alongside their accounting and financial information, data on the environmental and social consequences of their activities. The NRE law came into force through a decree dated February 20, 2002, and has applied since January 1, 2003, for financial years starting from January 1, 2002.
See B. Lassere, "Non-contestation of Charges in French Competition Law: Assessment and Prospects of a Pioneering Tool," Concurrences Review No. 2-2008, Article No. 17870, pp. 93-100.
Article 60 of the amended and supplemented Ordinance 03-03 stipulates "...during the investigation of the case concerning them..."
Regulation (EC) No 1/2003 of the Council of December 16, 2002, on the implementation of the rules of competition laid down in Articles 81 and 82 of the Treaty. Official Journal of the European Union (JOUE) L1 of January 4, 2003.
Commission Regulation (EC) No 622/2008 of June 30, 2008, amending Regulation (EC) No 733/2004 as regards the procedures for transactions carried out in cartel cases. JOUE L173/3 of July 1, 2008.
Commission Communication of July 2, 2008, on the procedures for transactions carried out with a view to the adoption of decisions under Articles 7 and 23 of Regulation (EC) No 1/2003 of the Council in cartel cases. JOUE C 167/1 of July 2, 2008.