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Home > Competition Law > Antitrust Encyclopedia

Competition Law in France

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  • Institutions

    • Institutions: List and roles

      • Which are the institutions responsible for the enforcement of competition policy?

        •  France

          The institutions responsible for the enforcement of competition policy are:
          -  The Competition Authority;
          -  The General Directorate for Fair Trading, Consumer Affairs and Fraud Control (“DGCCRF”), a department of the Ministry of Economy
          -  The commercial Courts of Marseille, Bordeaux, Lille, Fort-de-France, Lyon, Nancy, Paris and Rennes as mentioned in Decree No. 2005-1756 of 30 December 2005 (Article L420-7 Code de commerce; see Aimée Jeanne, A French Decree sets up exclusive Courts jurisdiction for all competition related matters, e-Competitions, January 2006-II; see Valérie Michel Amsellem, Courts specialisation: Decree Dec., 30 2005 sets up a list of specialized antitrust Courts, Concurrences, n° 1-2006, Procedures, p. 185; At times, the exclusive jurisdiction of these courts has been circumvented, with other courts asserting jurisdiction over competition law issues. See: Christophe Lemaire, A French commercial tribunal rules on its own competence to decide on a competition related issue in spite of the the new courts’ competition specialisation (Quaron/Roquette Frère), e-Competitions, August 2007-II).
          -  The Paris Court of Appeals;
          -  The Supreme judiciary Court (“Cour de cassation”);
          -  Administrative Courts including the Supreme Administrative Court (the “Conseil d’Etat”).
          Nicolas Petit, Law Faculty - IEJE (Liege), Elise Provost, Sorbonne University (Paris), University of Liege (ULg), Antitrust encyclopedia: France, January 2009
          Question.: 521
Pays.....: 10
Article..: 15188
          Case law
          • Laurence Idot, Valérie Michel Amsellem, Robert Saint-Esteben,  Laurence IDOT - Valérie MICHEL-AMSELLEM - Robert SAINT-ESTEBEN: Reform of French competition law,  May 2008, e-Competitions, n°17454, www.concurrences.com
          • Fabien Zivy,  Which institutional framework for regulating competition? An European family portrait,  November 2007, e-Competitions, n°14481, www.concurrences.com
          • François Souty,  National Competition Authorities in G7 countries: An institutional comparison,  May 2007, e-Competitions, n°13580, www.concurrences.com
          • Olivier Fréget, Marie-Dominique Hagelsteen, Jérôme Gallot, Carlos Pascual Pons,  Towards a merger of the Conseil de la concurrence and the DGCCRF?,  February 2007, e-Competitions, n°13033, www.concurrences.com

      • What is the role of each institution?

        •  France

          The Competition Authority was created by Law No. 2008-776 of 4 August 2008 (Loi de modernisation de l’économie), taking over from the former Competition Council, and was officially set up on 13 January 2008. It is an independent administrative authority, which is formally insulated from the influence of the French government. The Competition Authority enjoys three distinct types of competences. First, the Competition authority discharges a variety of advisory functions. It must be formally consulted by the Government on any legislative proposal regarding competition (Article L462-2 Code de commerce). In addition, its opinion can be requested on any competition-related issue. In this context, a wide number of entities are entitled to petition for an opinion, including the Government, the Parliament, courts, sectoral regulators (such as the Telecommunications Regulator (“ARCEP”), the Audiovisual Regulator (“CSA”) or the Energy Regulator (“CRE”)), local and regional administrations, professional and consumers associations, trade unions and chambers of agriculture and of trade and industry (Articles L461-5, L462-1 and L462-3 Code de commerce. see for ex.: Juliette Goyer, The French Competition Authority issues an opinion regarding a sharing of confidential information system designed for hotels under both Art. 81 EC and national provisions (CCI Mulhouse), e-Competitions, December 2006-I, trade union organisations and consumer associations. Finally, the 2008 reform (Ordonnance n° 2008-1161 du 13 novembre 2008 portant modernisation de la régulation de la concurrence) entitles the Competition Authority to issue opinions on its own motion and, in particular, to recommend Government action in markets where competition can be improved. (Article L.462-4 Code de commerce). Second, the Competition Authority enforces French and EC antitrust laws in France by investigating cases and issuing decisions, including decisions ordering interim measures, injunctions, remedies and fines (Articles L462-5, L462-6 Code de commerce). In addition to this, the Competition Authority’s weaponry also comprises alternative enforcement instruments, such as i.e., the ability to accept commitments from the parties, to negotiate settlements and to grant full and partial immunity from fines to leniency applicants in cartel cases. Third, the Competition Authority is competent to review merger notifications (Article L430-3 Commercial Code). Prior to 2008, this competence belonged to the DGCCRF.
          -  The DGCCRF is a department of the Ministry of Economy. Whilst its powers in the field of competition law have significantly diminished as a result of the 2008 reform, it nonetheless retains a number of competences in the fields of antitrust and merger control (the DGCCRF also discharges a number of duties in relation to consumer protection and sector specific regulation). First, in the field of antitrust law, the DGCCRF remains empowered to investigate antitrust cases. In certain circumstances, the DGCCRF even enjoys enforcement powers similar, in nature, to those of the Competition Authority. The DGCCRF can indeed order undertakings to put an end to a course of conduct it deems anticompetitive, where (i) the practice affects a “local market”; (ii) the practice does not fall within the purview of Articles 81 and 82 EC; and (iii) the turnover of each involved firm is below €50 millions and their aggregate turnover is below €100 millions. The DGCCRF cannot undertake such actions if the case has been referred to the Competition Authority (Article L464-9 Commercial Code). Second, in the field of merger control, the DGCCRF can request the Competition Authority to subject a transaction to an in-depth investigation (“second phase”) (Article L430-7-1 Code de commerce). More controversially, the DGCCRF may assert jurisdiction over the merits of a merger transaction (Article L431-7-1 Commercial Code) and decide the case for public interest reasons alien to the protection of the competitive process (e.g. employment, industrial development, etc.)
          -  Civil and commercial Courts (with appropriate jurisdiction, see above) may also enforce French and EC competition laws. Acting before national courts offers various well-known advantages for private parties. First, civil and commercial courts can declare anticompetitive agreements “nul and void”. In this context, civil and commercial courts can also decide whether an agreement shall be considered void in its entirety, by virtue of the existence of an unlawful, non severable, clause (these cases are not so common, see for ex. (Juliette Goyer, Lauriane Lépine, A French Court of Appeal annuls a commissioning agreement for violation of Art. 81 EC (SAS Prim’Co ), e-Competitions, Dec. 2007-I). Second, civil and commercial courts may grant damages to private parties that have sustained a loss as a result of an anticompetitive course of conduct. Any firm found guilty of an infringement of the French and/or EC competition laws, may indeed be liable to pay damages to third parties (cases of damages actions have been systematically reported in the e-Competitions Damages Research program; browse the results of this program by using the Detailed Search function and type “France” (in the Member State section) and Damages (in the Key words section). On the role of the Paris Court of appeals in competition cases, see Michel Roseau, La Cour d’appel de Paris et le contentieux objectif du droit de la concurrence (2003-2006): Du contrôle à la régulation ? , Concurrences, N° 3-2007, pp. 72-80
          -  Administrative courts have jurisdiction to enforce French and EC competition laws in cases where public undertakings (e.g. state-owned firms) (i) discharge public service missions; or (ii) exercise quasi-regulatory prerogatives (see for ex. Olivier Fréget, Fleur Herrenschmidt, The French Supreme Administrative Court annuls a State’s decision discriminating the reimbursement’s rate between princeps and generic drugs (GlaxoSmithKline), e-Competitions, July 2007-I). In addition, in the context of conventional annulment proceedings against administrative decisions/regulations(e.g., a ministerial order, etc.), administrative courts may also nullify those acts which are contrary to French and/or EC competition provisions (see for ex. Olivia Davidson, The French Council of State holds that the Auditors Code of Ethics does not impose or support the conclusion of agreements contrary to Art. 81 EC (KPMG), e-Competitions, May 2006-I). Finally, the Council of State, which is at the apex of the administrative courts system, is competent to review merger decisions adopted by the the Minister of economics, in those cases where the DGCCRF has asserted jurisdiction over the merits of a merger transaction (for a case of annulation of a merger cleared by the Minister for economics under the prior merger control regime, see: Olivier Fréget, Maria Hauser, Alban Saget, The French Supreme Administrative Court annuls a merger authorisation in the press sector (Société France Antilles), e-Competitions, April 2007-II).
          Nicolas Petit, Law Faculty - IEJE (Liege), Elise Provost, Sorbonne University (Paris), University of Liege (ULg), Antitrust encyclopedia: France, January 2009
          Question.: 522
Pays.....: 10
Article..: 15596

    • More on institutions

      • Is there concurrent jurisdiction with sectoral regulators? Which sectors are these?

        •  France

          With the Competition Authority holding jurisdiction over the economy as a whole (regardless of the sector concerned) and a range of sectoral regulators (such as ARCEP, CSA or CRE) enjoying non-exclusive jurisdiction over specific sectors, the risk of jurisdictional conflicts in France appears relatively high. Yet, there has been so far little issues of concurrent jurisdiction. This is because sector regulators do not directly enforce the competition provisions of the Commercial Code. Of course, sectoral regulators may examine antitrust issues whilst enforcing sector-specific regulations. Conversely, the Competition Authority may deal with regulatory issues whilst enforcing national or EC competition law in regulated industries. Yet, to avoid enforcement inconsistencies, sectoral regulators and the Competition Council have in the past extensively cooperated, in particular by issuing consultative opinions (on this issue, see inter alia.: Jean-Paul Tran Thiet, Christophe Lemaire, Michaël Cousin, Pierre-Alain Jeanneney, Nigel Parr, Catherine Hammon, Autorités de marché : Un cadre institutionnel et procédural à parfaire ?, Concurrences, N° 3-2007, Tendances, pp. 13-27; Didier Theophile, Étienne Renaudeau, Les relations entre le Conseil de la concurrence, l’ARCEP, la CRE et le CSA : Coopération ou concurrence ?, Concurrences, N° 3-2008, n°20367, pp. 67-75). There are good reasons to believe that a similar cooperation pattern will apply to the relationship between the novel Competition Authority and sectoral regulators.
          Nicolas Petit, Law Faculty - IEJE (Liege), Elise Provost, Sorbonne University (Paris), University of Liege (ULg), Antitrust encyclopedia: France, January 2009
          Question.: 523
Pays.....: 10
Article..: 15561

      • What is the process of decision making in a typical case?

        •  France

          Under the new competition regime established in 2008, both the Competition Authority and the DGCCRF can start an investigation (Article L450-1 Commercial Code). To focus only on the former (the DGCCRF concentrates on cases with a local dimension), the Competition Authority may start an investigation (i) on its own motion; or (ii) upon request of the Ministry of Economics (Article L462-5 Commercial Code), complaints lodged by undertakings and a number of organizations listed in the Commercial code. The investigation is placed under the supervision of a case-handler. Upon completion of the investigation, the case-handler must ultimately decide whether the case should be pushed forward, and submitted to the review of the members of the Council or dismissed. Should there be sufficient evidentiary elements in support of a finding of infringement, the case handler must draft a statement of objections, which is addressed to the parties. The parties shall respond in writing to the Statement of objections. The DGCCRF Officials and the interested ministers can also comment on the Statement of objection. The final decision over the existence of an infringement of the competition rules rests with the Competition Authority, which it renders following a formal hearing. Drawing on the experience of the European Commission, the 2008 reform created the function of hearing officer. The hearing officer’s primary function is to receive comment/hear complaints from the parties regarding the administrative investigation.
          Nicolas Petit, Law Faculty - IEJE (Liege), Elise Provost, Sorbonne University (Paris), University of Liege (ULg), Antitrust encyclopedia: France, January 2009
          Question.: 524
Pays.....: 10
Article..: 15598

      • Are there any recent/forthcoming changes with the institutions?

        •  France

          The 2008 reform marks a radical strengthening of the French antitrust agency. It brings about a myriad of institutional changes, some of which have been - and still are - the subject of strenuous debates. Whilst, in particular, the reform exhibits a number of welcome improvements in respect of due process and the rights of defense (e.g. the separation of investigation functions from decisional functions, the creation of the function of hearing officer, the possibility to appeal orders authorizing inspections and seizes etc.), a number of its provisions denote a disputed extension of the Competition Authority’s powers, which might place parties to antitrust proceedings into a weak bargaining situation (e.g. the Authority is entitled to take action for the sake of the example, the Authority can impose hefty fines on firms obstructing inquiries, etc.). In addition to this, the main important change introduced in 2008 concerns the French merger control regime, which has been brought in line with the EC regime. Whilst, in the past, the Competition Council only enjoyed advisory functions in the field of merger control - the Minister of Economics ultimately held the power to decide over merger notifications - the Competition Authority is now competent to fully review merger transactions (in some limited cases, the Ministry may act).
          Nicolas Petit, Law Faculty - IEJE (Liege), Elise Provost, Sorbonne University (Paris), University of Liege (ULg), Antitrust encyclopedia: France, January 2009
          Question.: 525
Pays.....: 10
Article..: 15599
          Case law
          • Laurence Idot, Valérie Michel Amsellem, Robert Saint-Esteben,  Laurence IDOT - Valérie MICHEL-AMSELLEM - Robert SAINT-ESTEBEN: Reform of French competition law,  May 2008, e-Competitions, n°17454, www.concurrences.com
          • Fabien Zivy,  Which institutional framework for regulating competition? An European family portrait,  November 2007, e-Competitions, n°14481, www.concurrences.com
          • François Souty,  National Competition Authorities in G7 countries: An institutional comparison,  May 2007, e-Competitions, n°13580, www.concurrences.com
          • Olivier Fréget, Marie-Dominique Hagelsteen, Jérôme Gallot, Carlos Pascual Pons,  Towards a merger of the Conseil de la concurrence and the DGCCRF?,  February 2007, e-Competitions, n°13033, www.concurrences.com

  • Anticompetitive practices

    • Legislation

      • What is the relevant legislation dealing with anticompetitive practices? What is the main wording?

        •  France

          In this section, anticompetitive practices refer to agreements and concerted practices prohibited by Article L.420-1 Commercial Code, the French equivalent to Article 81 of the EC Treaty. Article L.420-1 prohibits agreements that have the object or potential effect of an appreciable prevention, restriction or distortion of competition in France. Article L. 420-1 Commercial Code reads as follows: “Common actions, agreements, express or tacit undertakings or coalitions, particularly where they are intended to: (i) limit access to the market or the free exercise of competition by others; (ii) prevent price fixing by the free play of the market by artificially encouraging the increase or reduction of prices; (iii) limit or control production, opportunities, investments or technical progress; (iv) share out the markets or sources of supply, shall be prohibited when they are aimed at or may have the effect of preventing, restricting or distorting the free play of competition in a market”. (translation by www.legifrance.gouv.fr). The Article L.420-1 Commercial Code prohibition applies to horizontal agreements (agreements between competitors) and to vertical agreements (agreements between independent entities that operate at different economic levels). The Competition Council takes into account European Commission Regulation 2790/1999 which is applicable to categories of vertical agreements and concerted practices and the European Commission Notice Guidelines on vertical restraints, OJ C 291 of 13 October 2000, pp. 1-44. According to Article L. 420-3 Commercial Code, any “undertaking, agreement or contractual clause infringing” Article L. 420-1 Commercial Code is void (see, similarly for Art. 81.2 EC, for ex. (Juliette Goyer, Lauriane Lépine, A French Court of Appeal annuls a commissioning agreement for violation of Art. 81 EC (SAS Prim’Co ), e-Competitions, Dec. 2007-I). The Competition Council can impose fines upon the infringing party(ies). However, contrary to the courts, the Competition Council can neither declare a contract void, nor grant damages to recover the losses incurred as a result of anticompetitive practices.
          Christophe Clarenc, Latham & Watkins (Paris), Frédéric Pradelles, Latham & Watkins (Paris), Antitrust encyclopedia: France, November 2007
          Question.: 517
Pays.....: 10
Article..: 15600
          Case law
          • Jean-Patrice de La Laurencie,  The French Government enacts a law on the development of competition for the benefit of consumers (Chatel Act),  3 January 2008, e-Competitions, n°15956, www.concurrences.com
          • Léna Sersiron, Mireille Dany,  The French Parliament passes a new law on trade negotiations (Loi de modernisation de l’économie),  23 July 2007, e-Competitions, n°20828, www.concurrences.com
          • Aimée Jeanne,  A French Decree sets up exclusive Courts jurisdiction for all competition related matters,  30 December 2005, e-Competitions, n°402, www.concurrences.com

      • Which types of infringements are considered to be per se, if any?

        •  France

          There are no infringements likely to be considered as “per se” under Article L. 420-1 Commercial Code. However, in practice, hardcore restrictions on competition (e.g., price-fixing, limitation of output or sales, allocation of markets or sales, restrictions on passive sales outside the territory of an exclusive distributor to end customers) shall always be prohibited and unlikely to be exempted.
          Christophe Clarenc, Latham & Watkins (Paris), Frédéric Pradelles, Latham & Watkins (Paris), Antitrust encyclopedia: France, November 2007
          Question.: 547
Pays.....: 10
Article..: 15601
          Case law
          • Lila Ferchiche,  The French Competition Authority accepts the commitments to waive distribution exclusivity on mobile telephones ("i-Phone" Apple - Orange),  11 January 2010, e-Competitions, n°30196, www.concurrences.com
          • Lila Ferchiche,  A French Court of Appeal makes a reference for a preliminary ruling to the ECJ on whether a general and absolute ban on Internet sales by approved distributors does constitute a “hardcore restriction” on competition by object within the meaning of Art. 81.1 EC (Pierre Fabre Dermo-Cosmétique),  29 October 2009, e-Competitions, n°29700, www.concurrences.com
          • Juliette Goyer,  The French NCA sanctions the prohibition of Internet sales imposed on the members of a selective distribution network, under Art. 81.1 EC (Pierre Fabre Dermo-cosmétique),  29 October 2008, e-Competitions, n°22891, www.concurrences.com
          • Ombline Ancelin, Charles-Louis Saumon,  The French NCA fines a cosmetics manufacturer for prohibiting its selective distributors from selling its products on the Internet (Pierre Fabre Dermo-Cosmétique),  29 October 2008, e-Competitions, n°22998, www.concurrences.com
          • Lauriane Lépine, Dominique Enjolras,  The French Commercial Supreme Court rules that exchange of information between competitors in an oligopolistic market is not per se contrary to Art. 81 EC and national equivalent provision (Bouygues Telecom, Orange, SFR),  29 June 2007, e-Competitions, n°14162, www.concurrences.com
          • Michel Debroux,  The Paris Court of appeal rejects rule of reason reasoning and confirms ban on resale price maintenance (Guerlain a. o.),  26 June 2007, e-Competitions, n°13779, www.concurrences.com
          • Juliette Goyer, Lauriane Lépine, Dominique Enjolras,  The French Competition Council fines a chain store chocolate franchisor for a price fixing practices in sales to work councils (Jeff de Bruges),  24 January 2007, e-Competitions, n°13281, www.concurrences.com
          • David Spector,  The French competition authority fines construction firms for rigging bids but considers joint submissions legal (Public water supply networks),  17 January 2007, e-Competitions, n°13208, www.concurrences.com
          • Laura Castex,  The French Competition Council imposes record fines on the mobile telephone operators for market sharing and exchange of information (Orange, SFR, Bouygues),  3 November 2005, e-Competitions, n°347, www.concurrences.com
          • Juliette Goyer, Lauriane Lépine,  The French Competition Authority fines a price-fixing cartel in the essential lavender oils sector under Art. 81.1 EC (CIHEF),  12 October 2005, e-Competitions, n°303, www.concurrences.com
          • Noëlle Lenoir, Dan Roskis, Charlotte-Mai Doremus,  The Paris Court of Appeal holds that Art. 81 EC does not apply to a hairdressing franchise national network and that the provided “clause d’agrément” does not amount to a hardcore restriction (Socovi/Jean-Louis David),  21 September 2005, e-Competitions, n°1315, www.concurrences.com

      • Are there any “Guidelines”/“Notices” specific to anticompetitive practices?

      • To what extent does the legislation cover public undertakings?

        •  France

          The legislation applies to all undertakings, whether private or public, performing production, distribution and service activities.
          Christophe Clarenc, Latham & Watkins (Paris), Frédéric Pradelles, Latham & Watkins (Paris), Antitrust encyclopedia: France, November 2007
          Question.: 549
Pays.....: 10
Article..: 15603
          Case law
          • Ombline Ancelin, Charles-Louis Saumon,  The Paris Court of Appeals upholds the French Competition Council’s decision on the railway laying and maintenance cartel but reduces fines (SNCF/ETF and SPTV),  2 October 2007, e-Competitions, n°15032, www.concurrences.com
          • Juliette Goyer,  The French Competition Authority issues an opinion regarding a sharing of confidential information system designed for hotels under both Art. 81 EC and national provisions (CCI Mulhouse),  5 October 2006, e-Competitions, n°12635, www.concurrences.com
          • Stephan Reifegerste,  The French Supreme Court holds that low-price practice can not be sanctioned on the basis of tort law if it does not fell under competition provisions (Usines Merger/Giat Industries),  6 December 2005, e-Competitions, n°1138, www.concurrences.com

      • Are there any recent/forthcoming changes to the anticompetitive practices legislation?

    • De minimis - Exemptions

      • Is there a de minimis provision? What are the thresholds? Does it apply to certain markets? What are the relevant provisions?

      • Are there sectoral exemptions or specificities (outside EC law)? What are the relevant provisions?

        •  France

          An agreement which has been found anticompetitive may be exempted under Article L. 420-4-II Commercial Code. This article provides that “certain categories of agreement or certain agreements, in particular when they are intended to improve the management of small or medium-sized undertakings, may be recognised as meeting these conditions by a decree adopted following a favourable opinion” (translation by www.legifrance.gouv.fr) from the Competition Council. In this case, the agreements or categories of categories of agreements shall be submitted to the Minister with the information listed in Article R. 420-1 Commercial Code (including, detailed identification of the parties to the agreement, objectives of the agreement, definition of the relevant market, product, goods or services concerned, substitutable products, goods or services, market shares (in volume and value) by each party to the agreement, and impact of the agreement on competition).
          The draft decrees shall be published for comment in the Official Bulletin for Competition (BOCCRF) one month before their submission to the Competition Council. Comments by interested parties are transmitted to the Competition Council.
          Christophe Clarenc, Latham & Watkins (Paris), Frédéric Pradelles, Latham & Watkins (Paris), Antitrust encyclopedia: France, November 2007
          Question.: 552
Pays.....: 10
Article..: 15606

      • Are there block exemptions? Is there a system for individual exemption? What are the relevant provisions?

        •  France

          The exemption system is provided by Article L. 420-4-I Commercial Code:
          “The following practices are not subject to the provisions of Articles L.420-1 and L.420-2: 1° Those which result from the implementation of an act or regulation adopted in application thereof; 2° Those whose perpetrators can prove that they have the effect of ensuring economic progress, including by creating or maintaining jobs, and that they reserve for users a fair share in the resulting profit, without giving the undertakings involved the opportunity to eliminate competition for a substantial part of the products in question. Those practices which may consist of organising, for agricultural products or products of agricultural origin, under the same brand or trade name, the production volumes and quality and the commercial policy, including by agreeing a common transfer price, may impose restrictions on competition only insofar as these are essential to achieve this aim of progress” (translation by www.legifrance.gouv.fr).
          Christophe Clarenc, Latham & Watkins (Paris), Frédéric Pradelles, Latham & Watkins (Paris), Antitrust encyclopedia: France, November 2007
          Question.: 553
Pays.....: 10
Article..: 15607
          Case law
          • Michel Debroux,  The Paris Court of appeal rejects rule of reason reasoning and confirms ban on resale price maintenance (Guerlain a. o.),  26 June 2007, e-Competitions, n°13779, www.concurrences.com

      • What are the criteria for granting an exemption? What is the trend? What are the relevant provisions?

        •  France

          The criteria for granting the exemption set out in Article L. 420-4 Commercial Code are strictly interpreted. This means that the exemption may only apply if the practices are the direct and necessary consequence of the application of the laws or regulations prohibiting or authorising such practices. As far as the economic progress is concerned, the alleged economic progress must benefit the economy as a whole and not only the situation of the undertakings concerned. It must also be shown that the alleged economic progress is the direct consequence of the practices and that the latter are the only means of achieving such progress. It must also be shown that the economic progress achieved is significant enough to justify the restrictions of competition incurred by the practices.
          The benefit of the L. 420-4 Commercial Code exemption is often raised by undertakings before the Competition Council but is very rarely granted. In Decision No. 03-D-03 of 16 January 2003, the Competition Council examined the clauses provided in a collective insurance contract which was imposed by the Marseille Bar Association upon its members. The Competition Council took the view that the clauses relating to professional indemnity insurance could benefit from the exemption in so far as it was the direct and necessary application of the Law of 31 December 1971 on the organisation and regulation of the profession of “Avocat”. However, it considered that the clauses insuring the avocats against damages caused by natural disasters to clothes and objects stored in the cloakroom of the Marseille Bar Association could not be imposed on the members. The Competition Council found that such risk did not correspond to a risk specific to the profession of avocat and, as a consequence, did not fall within the avocats’ statutory obligation to subscribe to a professional indemnity insurance.
          Christophe Clarenc, Latham & Watkins (Paris), Frédéric Pradelles, Latham & Watkins (Paris), Antitrust encyclopedia: France, November 2007
          Question.: 554
Pays.....: 10
Article..: 15608
          Case law
          • Joseph Vogel,  A French Court renders a new decision relative to the selection of distributors of new vehicles in a qualitative and quantitative selective distribution system (Sodac / BMW France),  28 May 2009, e-Competitions, n°26551, www.concurrences.com
          • Joseph Vogel,  The Paris Court of Appeal rules on network reorganization and termination of distribution agreements (Volkswagen / Montélimar Automobiles),  21 January 2009, e-Competitions, n°25766, www.concurrences.com
          • Noëlle Lenoir, Dan Roskis, Marie-Laure Combet,  The Paris Court of Appeal confirms the possibility for a fragrance manufacturer to exclude pure players and to restrict internet sales within its selective distribution network (PMC Distribution / Pacific Création),  18 April 2008, e-Competitions, n°19680, www.concurrences.com
          • Christophe Roquilly,  A French Court rules that parallel resales do constitute an act of unfair competition (Puma / France Telecom, Brandalley, Vanam),  8 January 2008, e-Competitions, n°19958, www.concurrences.com
          • Noëlle Lenoir, Dan Roskis, Charlotte-Mai Doremus,  A French Court receives the first application ever from the EC Commission acting as amicus curia on the basis of Reg. N°1/2003 in a case concerning the application of the automotive block exemption (Garage Gremeau/Daimler Chrysler),  7 June 2007, e-Competitions, n°14966, www.concurrences.com
          • Jérôme Philippe, Charlotte-Mai Doremus,  The Paris Court of Appeal holds that a selective distribution system is compatible with EC Reg. n° 2790/1999 (LCJ Diffusion/La Roche Posay & Cosmétique Active France),  8 June 2005, e-Competitions, n°136, www.concurrences.com

      • Who carries the burden of proof for an exemption to be granted?

      • Which body if any supervises compliance with an exemption? What are the relevant provisions?

  • Unilateral practices

    • Legislation

      • What is the relevant legislation dealing with conducts of dominant firms? What is the exact wording?

        •  France

          Article L. 420-2, para. 1 Commercial Code is the French equivalent of Article 82 EC Treaty and specifically deals with the conduct of dominant firms. This article reads as follows: “The abuse by an undertaking or group of undertakings of a dominant position in the internal market or a substantial part of this shall be prohibited in accordance with the conditions specified by Article L.420-1. These abuses may in particular consist of refusals to sell, linked sales or discriminatory conditions of sale and the severance of established commercial relations solely because the partner refuses to submit to unjustified commercial conditions” (translation by www.legifrance.gouv.fr).
          According to Article L. 420-3 Commercial Code, any “commitment, agreement or contractual clause” infringing Article L. 420-2 Commercial Code is void. The Competition Council can impose fines upon the infringing party. However, contrary to the courts, the Competition Council cannot declare a contract void or grant damages to recover the losses incurred as a result of anticompetitive practices. Under French law, the abuse of a dominant position is not the only form of illegal abuse. There are two other different types of specific rules under French law: the abuse of economic dependence and excessive low prices. Article L. 420-2, paragraph 2 Commercial Code prohibits “the abuse by an undertaking or group of undertakings of the state of economic dependence in which a customer or supplier undertaking finds itself in respect of the above [...] when it is likely to affect the operation or structure of competition. These abuses may in particular consist of refusals to sell, linked sales or the discriminatory practices referred to in Article L.442-6 I or range agreements” (translation by www.legifrance.gouv.fr). Article L. 420-5 Commercial Code also prohibits “consumer price offers or sale prices which are excessively low in relation to production, processing or market costs, if these offers or prices have as their object or may have the effect of eliminating from a market or preventing access to a market by an undertaking or one of its products [...]”(translation by www.legifrance.gouv.fr).
          Christophe Clarenc, Latham & Watkins (Paris), Frédéric Pradelles, Latham & Watkins (Paris), Antitrust encyclopedia: France, November 2007
          Question.: 557
Pays.....: 10
Article..: 15611

      • Which types of infringements are considered to be per se, if any?

        •  France

          Besides Article L. 420-2 Commercial Code, French law may also prohibit unilateral conduct by non-dominant firms. Prohibition of restrictive trade practices such as discriminatory practices, unfair advantages, brutal interruption of established commercial relationships and resale at a loss applies to non-dominant firms and such practices are per se infringements prohibited by Book IV of the Commercial Code. Restrictive trade practices fall within the jurisdiction of regular courts and do not result in fines, unless the practices concerned also constitute an abuse of a dominant position or an abuse of economic dependence.
          Christophe Clarenc, Latham & Watkins (Paris), Frédéric Pradelles, Latham & Watkins (Paris), Antitrust encyclopedia: France, November 2007
          Question.: 558
Pays.....: 10
Article..: 15612
          Case law
          • Charles-Louis Saumon,  The French Competition Council fines a public port operator and two related companies for anticompetitive practices in the market of harbour services dedicated to coal (SOGEMA, Port Autonome du Havre),  13 September 2007, e-Competitions, n°14316, www.concurrences.com

      • Are there any “Guidelines”/“Notices” specific to unilateral practices?

      • To what extent does the legislation cover public undertakings?

        •  France

          The legislation applies to all undertakings, whether private or public, performing production, distribution and service activities. When public undertakings perform public service activities and use prerogatives of public authorities to this end, their conduct will be examined by administrative courts which are fully empowered to enforce both Article 82 of the EC and Article L. 420-2 Commercial Code.
          Christophe Clarenc, Latham & Watkins (Paris), Frédéric Pradelles, Latham & Watkins (Paris), Antitrust encyclopedia: France, November 2007
          Question.: 560
Pays.....: 10
Article..: 15613
          Case law
          • Dominique Brault, Romain Maulin,  The Paris Court of Appeal holds that the definition of the relevant market requires a specific assessment in cases involving a company providing a service of general economic interest (Vedettes inter-îles vendéennes),  9 June 2009, e-Competitions, n°26781, www.concurrences.com
          • Noëlle Lenoir, Dan Roskis, Charlotte-Mai Doremus,  The French Supreme Court questions allocation of costs in a predatory pricing Case (Vedettes inter-îles vendéennes),  17 June 2008, e-Competitions, n°21524, www.concurrences.com
          • Charles-Louis Saumon,  The French Competition Council fines a public port operator and two related companies for anticompetitive practices in the market of harbour services dedicated to coal (SOGEMA, Port Autonome du Havre),  13 September 2007, e-Competitions, n°14316, www.concurrences.com
          • David Sevy,  The French competition authority imposes an obligation upon the electricity incumbent to offer a wholesale contract to new entrants (Direct Energie/EDF),  24 July 2007, e-Competitions, n°14000, www.concurrences.com
          • Charles-Louis Saumon,  The French Competition Council imposes interim measures to the incumbent to safeguard competition on the electricity supply market requesting modification of termination of exclusivity clause (KalibraXE/EDF),  25 April 2007, e-Competitions, n°13746, www.concurrences.com
          • Charles-Louis Saumon,  The French Competition Authority adopts interim measures to protect competition in a public tendering in the maritime sector (SNCM, Corsica Ferries, Compagnie Méridionale de Navigation) ,  11 December 2006, e-Competitions, n°13254, www.concurrences.com
          • Jérôme Philippe, Charlotte-Mai Doremus,  The Court of Appeal of Paris confirms absence of predatory pricing on the basis of ECJ case law (VIIV/Régie départementale des passages d’eau de la Vendée),  28 June 2005, e-Competitions, n°287, www.concurrences.com

      • Are there any recent/forthcoming changes to the unilateral practices legislation?

        •  France

          There are no recent/forthcoming changes to the legislation on abuse of a dominant position. However, the current review process of Article 82 of the EC Treaty by the EC Commission is likely to have an impact on the Competition Council practice. As far as non dominant firms are concerned, a change in the legislation on restrictive trade practices has been announced for the first semester of 2008.
          Christophe Clarenc, Latham & Watkins (Paris), Frédéric Pradelles, Latham & Watkins (Paris), Antitrust encyclopedia: France, November 2007
          Question.: 561
Pays.....: 10
Article..: 15614

      • What is the objective of the legislation? Is it consumer welfare or total welfare?

    • Dominance

      • What is the definition of collective dominance? Does the definition exist in the legislation?

        •  France

          Article L. 420-2 Commercial Code refers to the abuse of dominance by an undertaking or a group of undertakings. The Competition Council applies the collective dominant position concept defined by the ECJ in Kali und Saltz and Airtour cases or by the CFI in the Gencor case. The test has been applied on various occasions.
          Christophe Clarenc, Latham & Watkins (Paris), Frédéric Pradelles, Latham & Watkins (Paris), Antitrust encyclopedia: France, November 2007
          Question.: 577
Pays.....: 10
Article..: 15617
          Case law
          • Juliette Goyer, Suzanne Jude,  The French Supreme Court clarifies the standard of proof applicable to collective dominance pursuant to Art. 82 EC and its French equivalent (Lafarge Ciments - Vicat),  7 July 2009, e-Competitions, n°28261, www.concurrences.com
          • Charles-Louis Saumon,  The French Supreme Court recalls the conditions for the demonstration of collective dominance (Corsican cement cartel),  7 July 2009, e-Competitions, n°28366, www.concurrences.com
          • Jérôme Philippe, Lucas Niedolistek,  The French Competition Council hands out two key decisions in relation to the concept of abuse of state of economic dependence (Concurrence - National union of the written press distributors SNDP),  20 January 2009, e-Competitions, n°24337, www.concurrences.com
          • Jeremy de Douhet,  The Paris Court of Appeal rejects the complaint of a French wholesaler-exporter of pharmaceutical products and allows quotas and refusals to sell (Pharma-Lab),  23 January 2007, e-Competitions, n°13725, www.concurrences.com
          • Juliette Goyer, Lauriane Lépine,  The French Competition Council issues an opinion on the distinction between abusive and legitimate exercise of a trademark (UEEFL),  14 April 2006, e-Competitions, n°1321, www.concurrences.com
          • Marie-Charlotte Rouzier,  The French Criminal Supreme Court confirms criminal sanctions against the CEO of a national copyright-management society for excessive fees (X / SACEM),  26 January 1994, e-Competitions, n°26226, www.concurrences.com

      • What is the definition of dominance?

        •  France

          Article L. 420-2 Commercial Code is the relevant provision for defining dominance. The Competition Council often refers to the test for dominance applied by the Commission and the EC Courts under Article 82 of the EC Treaty.
          Christophe Clarenc, Latham & Watkins (Paris), Frédéric Pradelles, Latham & Watkins (Paris), Antitrust encyclopedia: France, November 2007
          Question.: 576
Pays.....: 10
Article..: 15616
          Case law
          • Noëlle Lenoir, Dan Roskis, Charlotte-Mai Doremus,  The French Supreme Court questions allocation of costs in a predatory pricing Case (Vedettes inter-îles vendéennes),  17 June 2008, e-Competitions, n°21524, www.concurrences.com
          • Olivier Fréget, Fleur Herrenschmidt,  The French Competition Council renders a landmark interim decision on competition between princeps and generics (Arrow Génériques),  11 December 2007, e-Competitions, n°15720, www.concurrences.com
          • Jeremy de Douhet,  The Paris Court of Appeal rejects the complaint of a French wholesaler-exporter of pharmaceutical products and allows quotas and refusals to sell (Pharma-Lab),  23 January 2007, e-Competitions, n°13725, www.concurrences.com
          • Michel Debroux,  The French supreme Court alleviates the standard of proof of actual or potential effects of an abusive price squeeze in the telecommunications sector (Etna / France Telecom),  10 May 2006, e-Competitions, n°597, www.concurrences.com
          • Noëlle Lenoir, Dan Roskis, Charlotte-Mai Doremus,  The French supreme Court holds that the fact that competitors have found alternative solutions to avoid detrimental effects of price squeezing of the telco incumbent is irrelevant to establish an abuse under Art. 82 EC (ETNA/France Telecom-SFR),  10 May 2006, e-Competitions, n°1371, www.concurrences.com
          • Ombline Ancelin, Charles-Louis Saumon,  The Paris Court of Appeal limits the scope of the essential facilities theory by declining to consider abusive a refusal to access to a software (NMPP / MLP),  31 January 2006, e-Competitions, n°485, www.concurrences.com
          • Jacques Derenne, Lucas Niedolistek,  The French Competition Authority applies a "rule of reason analysis" to an abuse of dominant position in the press advertising sector (La Provence Group),  21 July 2005, e-Competitions, n°286, www.concurrences.com

      • Has a market share threshold been defined in legislation or case law, which determines whether an undertaking is dominant?

        •  France

          There is no formal threshold of dominance set by the Commercial Code or case law of the Competition Council. However, a market share above 40-50% may be considered as a factor indicating dominance, even though market shares are not the only element taken into account by the Competition Council in its analysis on the existence of a dominant position and are not always the decisive factor.
          Christophe Clarenc, Latham & Watkins (Paris), Frédéric Pradelles, Latham & Watkins (Paris), Antitrust encyclopedia: France, November 2007
          Question.: 578
Pays.....: 10
Article..: 15618

      • Does legislation apply to conducts of non-dominant firms which are nearly as powerful as the dominant firm in the market? Does the case law cover such conducts?

        •  France

          French law may prohibit unilateral conduct by non-dominant firms. Prohibition of restrictive trade practices such as discriminatory practices, unfair advantages, brutal interruption of established commercial relationships and resale at a loss applies to non-dominant firms and such practices are per se infringements prohibited by Book IV of the Commercial Code. Restrictive trade practices fall within the jurisdiction of regular courts and do not result in fines, unless the practices concerned also constitute an abuse of a dominant position or an abuse of economic dependence.
          Christophe Clarenc, Latham & Watkins (Paris), Frédéric Pradelles, Latham & Watkins (Paris), Antitrust encyclopedia: France, November 2007
          Question.: 579
Pays.....: 10
Article..: 15619

    • Abuse

      • Is there causality between the creation of dominant position and its abuse?

      • What is the definition of abuse of a dominant position?

      • Does the legislation/case law cover attempts of firms to become dominant?

      • Do economics play an important role in the assessment of conducts of dominant firms?

        • pas d'article correspondant au pays France

      • Are exploitative abuses captured?

      • Are exclusionary abuses captured?

      • What is the most frequent type of abuse that the authorities investigate? What is the least frequent?

        •  France

          The Competition Council investigates all types of abuse of dominant position that are referred to it.
          Christophe Clarenc, Latham & Watkins (Paris), Frédéric Pradelles, Latham & Watkins (Paris), Antitrust encyclopedia: France, November 2007
          Question.: 586
Pays.....: 10
Article..: 15626
          Case law
          • Juliette Goyer, Lauriane Lépine, Julien Payré,  The French National Competition Authority dismisses a claim for predatory pricing under Art. 82 EC and article L. 420-2 of the French commercial Code (Chep France),  10 November 2009, e-Competitions, n°30032, www.concurrences.com
          • Joseph Vogel,  The French Competition Authority holds again that the main telecom operator had exploited its dominant position (France Télécom),  28 July 2009, e-Competitions, n°29111, www.concurrences.com
          • Juliette Goyer, Suzanne Jude,  The French Supreme Court confirms rebutting of an appeal against an NCA’s decision sanctioning predatory pricing in the market for sodic cefuroxime (GlaxoSmithKline),  17 March 2009, e-Competitions, n°26440, www.concurrences.com
          • Elise Provost,  The French Supreme Court clarifies the use of the indispensable input criterion in a margin squeeze case (SFR-France Télécom),  3 March 2009, e-Competitions, n°26721, www.concurrences.com
          • Michele Giannino,  The French Competition Authority condemns a maritime transport operator for abusive conducts perpetrated in a tender procedure regarding the assignation of the Marseille/Corsica maritime links to be provided under a public service obligation (SNCM),  27 February 2009, e-Competitions, n°28425, www.concurrences.com
          • Noëlle Lenoir, Marie-Laure Combet,  The French Competition Council finds the incumbent rail operator guilty of implementing discriminatory practices in favor of its online travel subsidiaries and for entering into an anti-competitive partnership (SNCF /Expedia),  5 February 2009, e-Competitions, n°25714, www.concurrences.com
          • Sergio Sorinas, Estelle Jégou,  The French Competition Council inflicts fines for abuse of dominant position for offering loyalty rebates in the press distribution sector (MNPP),  27 January 2009, e-Competitions, n°26901, www.concurrences.com
          • Romain Maulin, Sergio Sorinas,  The French NCA accepts commitments from the incumbent operator in the sector of engineering, consultancy and certification of telecommunication facilities in a case of alleged abuse of dominant position (Solutel/France Télécom),  7 October 2008, e-Competitions, n°26686, www.concurrences.com
          • Noëlle Lenoir, Dan Roskis, Charlotte-Mai Doremus,  The French Supreme Court questions allocation of costs in a predatory pricing Case (Vedettes inter-îles vendéennes),  17 June 2008, e-Competitions, n°21524, www.concurrences.com
          • Marie-Charlotte Rouzier,  The French Supreme Court rules on the criminal rules governing the limitation period in an abuse of dominant position case (SNF / Cytec Industries),  19 March 2008, e-Competitions, n°19857, www.concurrences.com
          • Joseph Vogel,  A French Court rules that a commercial Court has no jurisdiction to withdraw the benefit of the exemption provided by a block exemption regulation (Turbo Europe/Peugeot-Renault-Citroën),  13 March 2008, e-Competitions, n°19682, www.concurrences.com
          • Sylvain Justier,  The French Competition Council refuses to impose interim measures to facilitate the roll out of fiber to the home networks in France (Free/France Telecom),  12 February 2008, e-Competitions, n°15916, www.concurrences.com
          • Charles-Louis Saumon,  The French Competition Council fines a public port operator and two related companies for anticompetitive practices in the market of harbour services dedicated to coal (SOGEMA, Port Autonome du Havre),  13 September 2007, e-Competitions, n°14316, www.concurrences.com
          • David Sevy,  The French competition authority imposes an obligation upon the electricity incumbent to offer a wholesale contract to new entrants (Direct Energie/EDF),  24 July 2007, e-Competitions, n°14000, www.concurrences.com
          • Noëlle Lenoir, Dan Roskis, Charlotte-Mai Doremus,  The French Competition Council orders the electricity incumbent to amend early termination clauses in supply contracts (EDF),  25 April 2007, e-Competitions, n°13724, www.concurrences.com
          • Christophe Lemaire,  A French commercial tribunal rules on its own competence to decide on a competition related issue in spite of the the new courts’ competition specialisation (Quaron/Roquette Frère),  4 April 2007, e-Competitions, n°14034, www.concurrences.com
          • Hélène d’Udekem d’Acoz,  The French Competition Council fines predatory pricing aimed at preventing entry of generic drugs in hospitals on the basis of both EC and national competition provisions (GlaxoSmithKline France),  14 March 2007, e-Competitions, n°13613, www.concurrences.com
          • Jeremy de Douhet,  The Paris Court of Appeal rejects the complaint of a French wholesaler-exporter of pharmaceutical products and allows quotas and refusals to sell (Pharma-Lab),  23 January 2007, e-Competitions, n°13725, www.concurrences.com
          • Sylvie Grando, Emilie Minard,  The French competition Council rules on the status of competition in the cinema advertising industry (Société Technic Publicité/Médiavision),  28 July 2006, e-Competitions, n°20292, www.concurrences.com
          • Michel Debroux,  The French supreme Court alleviates the standard of proof of actual or potential effects of an abusive price squeeze in the telecommunications sector (Etna / France Telecom),  10 May 2006, e-Competitions, n°597, www.concurrences.com
          • Noëlle Lenoir, Dan Roskis, Charlotte-Mai Doremus,  The French supreme Court holds that the fact that competitors have found alternative solutions to avoid detrimental effects of price squeezing of the telco incumbent is irrelevant to establish an abuse under Art. 82 EC (ETNA/France Telecom-SFR),  10 May 2006, e-Competitions, n°1371, www.concurrences.com
          • Laura Cerny,  The French Competition Council fines exclusionary practices and requires the removal of exclusivity clauses in the self-catering accommodations market on the basis of Art. 82 EC (Gîtes de France),  17 March 2006, e-Competitions, n°554, www.concurrences.com
          • Michel Debroux,  A French first instance Court ready to welcome the defendant’s counter-claim that the plaintiff abused its alleged dominant position through aggressive and spurious patenting policy on the basis of Art. 82 EC (LuK Lamellen/Valeo),  26 January 2006, e-Competitions, n°419, www.concurrences.com
          • Juliette Goyer, Lauriane Lépine,  The French Competition Council Fines the postal incumbent for abuse of dominant position under both national and EC competition provisions (La Poste),  17 November 2005, e-Competitions, n°495, www.concurrences.com
          • François Dumonteil,  The French competition authority validates practices in the taximeter sector on the basis of both EC and French competition laws,  28 July 2005, e-Competitions, n°259, www.concurrences.com
          • Jacques Derenne, Lucas Niedolistek,  The French Competition Authority applies a "rule of reason analysis" to an abuse of dominant position in the press advertising sector (La Provence Group),  21 July 2005, e-Competitions, n°286, www.concurrences.com
          • Jérôme Philippe, Charlotte-Mai Doremus,  The Court of Appeal of Paris confirms absence of predatory pricing on the basis of ECJ case law (VIIV/Régie départementale des passages d’eau de la Vendée),  28 June 2005, e-Competitions, n°287, www.concurrences.com
          • Marie-Charlotte Rouzier,  The French Criminal Supreme Court confirms criminal sanctions against the CEO of a national copyright-management society for excessive fees (X / SACEM),  26 January 1994, e-Competitions, n°26226, www.concurrences.com
          • Marie-Charlotte Rouzier,  The French Criminal Supreme Court rules on the first implementations of Art. L. 420-6 C. com. (PFG - Funeral Services of Avignon),  21 November 1991, e-Competitions, n°26239, www.concurrences.com

      • In which sectors are abuse of dominance cases more likely?

        •  France

          Abuse of a dominant position claims mostly involved companies active in the publishing/media/press, telecom/postal services, vehicles and energy sectors.
          Christophe Clarenc, Latham & Watkins (Paris), Frédéric Pradelles, Latham & Watkins (Paris), Antitrust encyclopedia: France, November 2007
          Question.: 587
Pays.....: 10
Article..: 15627
          Case law
          • Joseph Vogel,  The French Competition Authority holds again that the main telecom operator had exploited its dominant position (France Télécom),  28 July 2009, e-Competitions, n°29111, www.concurrences.com
          • Elise Provost,  The French Supreme Court clarifies the use of the indispensable input criterion in a margin squeeze case (SFR-France Télécom),  3 March 2009, e-Competitions, n°26721, www.concurrences.com
          • Romain Maulin, Sergio Sorinas,  The French NCA accepts commitments from the incumbent operator in the sector of engineering, consultancy and certification of telecommunication facilities in a case of alleged abuse of dominant position (Solutel/France Télécom),  7 October 2008, e-Competitions, n°26686, www.concurrences.com
          • Sylvain Justier,  The French Competition Council refuses to impose interim measures to facilitate the roll out of fiber to the home networks in France (Free/France Telecom),  12 February 2008, e-Competitions, n°15916, www.concurrences.com
          • Michel Debroux,  The French supreme Court alleviates the standard of proof of actual or potential effects of an abusive price squeeze in the telecommunications sector (Etna / France Telecom),  10 May 2006, e-Competitions, n°597, www.concurrences.com
          • Noëlle Lenoir, Dan Roskis, Charlotte-Mai Doremus,  The French supreme Court holds that the fact that competitors have found alternative solutions to avoid detrimental effects of price squeezing of the telco incumbent is irrelevant to establish an abuse under Art. 82 EC (ETNA/France Telecom-SFR),  10 May 2006, e-Competitions, n°1371, www.concurrences.com

    • Justifications

      • What justifications, if any, for an abuse of dominant position are acceptable?

        •  France

          A practice or agreement which is likely to fall within the scope of Article L. 420-2 Commercial Code may be entitled to the exemption provided for in Article L. 420-4 Commercial Code. As explained above, the exemption system is provided by Article L. 420-4-I Commercial Code. “The following practices are not subject to the provisions of Articles L.420-1 and L.420-2:
          1° Those which result from the implementation of an act or regulation adopted in application thereof;
          2° Those whose perpetrators can prove that they have the effect of ensuring economic progress, including by creating or maintaining jobs, and that they reserve for users a fair share in the resulting profit, without giving the undertakings involved the opportunity to eliminate competition for a substantial part of the products in question. Those practices which may consist of organising, for agricultural products or products of agricultural origin, under the same brand or trade name, the production volumes and quality and the commercial policy, including by agreeing a common transfer price, may impose restrictions on competition only insofar as these are essential to achieve this aim of progress” (translation by www.legifrance.gouv.fr).
          Christophe Clarenc, Latham & Watkins (Paris), Frédéric Pradelles, Latham & Watkins (Paris), Antitrust encyclopedia: France, November 2007
          Question.: 588
Pays.....: 10
Article..: 15628
          Case law
          • Marie-Charlotte Rouzier,  The Paris Court of Appeal upholds the NCA’s decision according to which the modification of the charges of an undertaking, which has a dominant position on the market of periodicals’ retail, as soon as it is based on objective criteria and aims at a legitimate objective, is not discriminatory and thus does not constitute an abuse (NMPP/EPM),  17 September 2008, e-Competitions, n°25713, www.concurrences.com

  • Mergers

    • Legislation & institutions

      • What is the substantive test for mergers? What are the relevant provisions?

        •  France

          The test to assess the impact of a concentration on competition is set forth by Article L. 430-6 of Title III of Book IV of the Commercial Code. Pursuant to this test, the authorities examine whether the proposed concentration is likely to harm competition, particularly by the creation or reinforcement of a dominant position or by the creation or reinforcement of buying power which places suppliers in a position of economic dependence. The assessment involves an economic appraisal of the operation, taking into account its economic and social effects.
          Christophe Clarenc, Latham & Watkins (Paris), Frédéric Pradelles, Latham & Watkins (Paris), Renaud Christol, Latham & Watkins (Paris), Antitrust encyclopedia: France, December 2009
          Question.: 571
Pays.....: 10
Article..: 15632

      • What types of mergers does the legislation cover? What are the relevant provisions?

        •  France

          The type of mergers and acquisitions which constitute concentrations and require clearance are defined in Title III of Book IV of the Commercial Code. They are identical to those stipulated in the EC Regulation. Under Article L. 430-1 of the Commercial Code: “a concentration shall be deemed to arise where : 1° two or more previously independent undertakings merge ; 2° one or more persons already holding control of at least one undertaking or when one or more undertakings acquire control of all or part of one or more other undertakings, directly or indirectly, whether by the acquisition of a holding in the capital or by purchasing assets, a contract or any other means” (translation by www.legifrance.gouv.fr). Control is defined by Article L. 430-1 III of the Commercial Code as the “ability to exercise decisive influence”.
          Christophe Clarenc, Latham & Watkins (Paris), Frédéric Pradelles, Latham & Watkins (Paris), Renaud Christol, Latham & Watkins (Paris), Antitrust encyclopedia: France, December 2009
          Question.: 589
Pays.....: 10
Article..: 15630

      • Does the merger legislation cover joint ventures? What are the relevant provisions?

        •  France

          The creation of a joint venture “performing on a lasting basis all the functions of an autonomous economic entity” constitutes a concentration under Article L. 430-1 II of the Commercial Code and, assuming the relevant thresholds are met, falls within Title III of the Commercial Code as a qualifying operation. For example, the Natixis JV, which was created by two major French banks, Groupe Banques Populaires and Groupe Caisse d’Epargne, was thoroughly analysed by the Minister in 2006.(see below)
          Christophe Clarenc, Latham & Watkins (Paris), Frédéric Pradelles, Latham & Watkins (Paris), Renaud Christol, Latham & Watkins (Paris), Antitrust encyclopedia: France, December 2009
          Question.: 590
Pays.....: 10
Article..: 15631
          Case law
          • Catherine Boussac, Thomas Piquereau, Jennifer Siroteau, Jérôme Vidal,  The French Minister of the Economy clarifies his position on the risk of coordination by parent companies while clearing his first transaction in the banking sector (NatIxis),  10 August 2006, e-Competitions, n°12605, www.concurrences.com
          • Stanislas Martin,  The French Minister cleared in phase II the creation of a JV in the sector of production and sale of de-icing salt subject to divestiture, obligation of supply and withdrawing the use of a trademark (CSME / MDPA / SCPA / ROCK ),  1 September 1999, e-Competitions, n°22042, www.concurrences.com

      • Are there specific provisions/exceptions for markets of insufficient importance?

      • Which institutions have the burden of merger enforcement?

      • What is the role of each institution?

        •  France

          Mergers are investigated solely by the Competition Authority. The Minister of Economy retains some powers in two circumstances: i) within 5 working days from the date of a decision authorizing a concentration pursuant to a Phase I examination, the Minister of Economy can request that the Competition Authority proceeds to a Phase II examination of the concentration; ii) whether the concentration has been authorized, prohibited or authorized with conditions or with commitments from the parties, within a 25 working days deadline of any Phase II decision, the Minister of Economy has authority to rule over the case. This power is not granted for reasons related to upholding of competition, but rather for reasons of “general interest”, such as, for example, “industrial development, competitiveness of the companies concerned in light of international competition or, creation or preservation of employment” (Article L.430-7-1 of the Commercial Code).
          Christophe Clarenc, Latham & Watkins (Paris), Frédéric Pradelles, Latham & Watkins (Paris), Renaud Christol, Latham & Watkins (Paris), Antitrust encyclopedia: France, December 2009
          Question.: 593
Pays.....: 10
Article..: 15634

    • Remedies

      • What types of remedies are available?

      • Can remedies be offered in Phase I? What are these?

        •  France

          Commitments can be offered in Phase I. Such commitments may either be structural or behavioural. For a recent example, see the Caisse d’Epargne/Banque Populaire decision rendered by the Competition Authority on 22 June 2009 (09-DCC-16)(See: Alexandre Palka, The French National Competition Authority clears in Phase I a merger in the banking sector with behavioral remedies aiming at ensuring that local conditions of competition in the Réunion island will be maintained (Groupe Banque Populaire / Groupe Caisse d’Epargne), 22 June 2009, e-Competitions, n°28307, www.concurrences.com). For another example, see Didier Theophile, Virginie Viallard, The French Minister of Economy grants clearance to a merger in the measurement and billing of energy sector, subject to divestiture and granting of software and brand licenses (Ista/Celliande), 28 September 2006, e-Competitions, n°13138, www.concurrences.com.
          Christophe Clarenc, Latham & Watkins (Paris), Frédéric Pradelles, Latham & Watkins (Paris), Renaud Christol, Latham & Watkins (Paris), Antitrust encyclopedia: France, December 2009
          Question.: 617
Pays.....: 10
Article..: 15662
          Case law
          • Alexandre Palka,  The French National Competition Authority clears in Phase I a merger in the banking sector with behavioral remedies aiming at ensuring that local conditions of competition in the Réunion island will be maintained (Groupe Banque Populaire / Groupe Caisse d’Epargne),  22 June 2009, e-Competitions, n°28307, www.concurrences.com
          • Sophie De Cara,  The French Ministry of Economy clears a merger of companies providing information on horse racing to professionals and the general public, subject to the provision of essential racing data to third parties under transparent and non-discriminatory conditions (PMU/Serendipity/Geny Infos),  16 July 2008, e-Competitions, n°26164, www.concurrences.com
          • François Blanc,  The French Minister of Economics cleared a merger in the sector of mobile telephony products and services, including divestiture and behavioural commitments (France Telecom/ Compagnie Européenne de Télévision),  4 January 2008, e-Competitions, n°22672, www.concurrences.com
          • Francesco Rosati,  The French Minister of Economy requires in Phase I important remedies to address concerns of bundling in a merger of newspapers and magazines publishers (LVMH / Les Echos),  19 December 2007, e-Competitions, n°16045, www.concurrences.com
          • Francesco Rosati,  The French Minister of Economy sets out principles for the assessment of competition in markets that use Internet as media and clears in phase I a merger in the market for on-line classified advertisement, subject to remedies (Spir/Schibsted),  10 September 2007, e-Competitions, n°15732, www.concurrences.com
          • François Blanc,  The French Minister of Economy cleared in Phase I with behavioural commitments a merger in the Internet classified advertisements market (Spir Communication / Schibsted ASA),  10 September 2007, e-Competitions, n°15875, www.concurrences.com
          • Aude Guyon,  The French Minister of Economy grants conditional clearance to a merger in the railway laying and maintenance sector (Colas/Spie Rail),  14 May 2007, e-Competitions, n°13772, www.concurrences.com
          • François Blanc,  The French Minister of Economy granted conditional clearance in phase I to a merger in the railway laying and maintenance sector (Colas/Spie Rail),  14 May 2007, e-Competitions, n°15876, www.concurrences.com
          • William Simpson,  The French merger control authority upheld an acquisition in the audiovisual sector conditional to remedies (Sociétés TF1 et AB/TMC),  27 October 2004, e-Competitions, n°22742, www.concurrences.com
          • François Blanc,  The French Minister of Economy cleared a merger in the large retail distribution sector with divestment remedies (Carrefour-ED/Treff) ,  7 November 2003, e-Competitions, n°15874, www.concurrences.com
          • Stanislas Martin,  The French Minister of Economy cleared a merger in the DIY products sector subject to termination of a franchise agreement (Mr Bricolage/Tabur),  29 September 2002, e-Competitions, n°22048, www.concurrences.com
          • Stanislas Martin,  The French Ministry of Economy cleared a merger in the retail of consumer goods sector subject to remedies preventing the buyer from converting the stores acquired into supermarkets (Galeries Lafayette/Marks and Spencer),  24 December 2001, e-Competitions, n°22046, www.concurrences.com
          • Stanislas Martin,  The French Minister clears a merger in the sector of advertising with remedies including bundling prohibition and output restriction (Decaux SA/Avenir),  13 August 1999, e-Competitions, n°21080, www.concurrences.com
          • Stanislas Martin,  The French Minister of Economics cleared a merger in the sector of facial tissues with remedies including restriction of advertising investments, withdrawing of the use of a trademark and prohibition of reference rebates (Fort James/Demak’up),  26 June 1999, e-Competitions, n°21079, www.concurrences.com

      • Can remedies be offered in Phase II?

        •  France

          Commitments can also be offered in Phase II. Such commitments may either be structural or behavioural.
          Christophe Clarenc, Latham & Watkins (Paris), Frédéric Pradelles, Latham & Watkins (Paris), Renaud Christol, Latham & Watkins (Paris), Antitrust encyclopedia: France, December 2009
          Question.: 619
Pays.....: 10
Article..: 15663
          Case law
          • An Renckens,  The French National Competition Authority clears in Phase II with behavioural remedies a merger in the rolling shutters sector and gives its assessment of conglomerate effects (Somfy/Zurflüh-Feller),  12 June 2008, e-Competitions, n°22133, www.concurrences.com
          • Charlotte Beauchataud,  The French Minister of Economy authorizes the creation of a quasi-monopoly on the markets of exhibition site management and organisation of trade exhibitions following 25 years duration remedies concerning, inter alia, increase of services (Unibail Holding/CCIP),  13 November 2007, e-Competitions, n°15519, www.concurrences.com
          • François Blanc,  The French Minister of Economy cleared a merger in phase II in the markets of exhibition site management and organisation of trade exhibitions with remedies, including assets increase and price regulation remedies (CCIP/Unibail),  13 November 2007, e-Competitions, n°19724, www.concurrences.com
          • William Simpson,  The French Minister of Economic Affairs cleared in phase II a merger in the market of airport services conditional to structural and behavioural remedies and the nomination of a trustee (Vinci/France Handling),  25 July 2005, e-Competitions, n°21139, www.concurrences.com
          • Stanislas Martin,  The French Minister of Economy cleared in Phase II an extra-territorial merger in the flight services sector subject to behavioural remedies consisting in an information barrier (Boeing - Jeppsen),  4 July 2001, e-Competitions, n°22040, www.concurrences.com
          • Stanislas Martin,  The French Minister cleared in phase II the creation of a JV in the sector of production and sale of de-icing salt subject to divestiture, obligation of supply and withdrawing the use of a trademark (CSME / MDPA / SCPA / ROCK ),  1 September 1999, e-Competitions, n°22042, www.concurrences.com

      • How are remedies implemented? Are there monitoring provisions? What happens if a remedy is not fulfilled?

  • Procedure

    • Investigations & Inquiries

      • What are the powers of investigation? What are the relevant provisions?

        •  France

          The agents of the DGCCRF (“investigators”) have extensive investigative powers to enforce Articles L. 420-1 to Article L. 420-7 Commercial Code. They may be instructed to investigate either by the Minister or the Competition Council. There are two types of investigation:
          Administrative investigations (Article L. 450-1 Commercial Code):
          Investigators may, without any court authorisation, have access to any premises, land or means of transportation for business use, ask for the submission of books, invoices and any other business documents, obtain or make copies thereof by any means and on any media, and order the production of information and substantiating documents either on-site or on request. They may also ask the courts to appoint an expert in order to receive a second expert opinion, should this be necessary. Pursuant to Articles R. 450-1 and 2 Commercial Code, the minutes must be signed by the representative of the investigated company to whom a copy of the minutes must be delivered. Although it is not provided in the Commercial Code, the French courts require the agents to indicate the scope of the investigation.
          Dawn raids (Article L. 450-4 Commercial Code):
          This type of investigation must be authorised by a particular judge, juge des libertés et de la détention or a judge delegated by the former upon a reasoned request of the Minister, the Rapporteur Général of the Competition Council or the EC Commission. This request must include all the information in the requesting party’s possession which justifies the investigation. The Commercial Code provides that the inspection may take place in the presence of the occupant of the premises or of the latter’s representative, and if they are absent, two witnesses chosen by the police officer designated by the judge among persons who are neither under his authority nor the authority of the administration of the DGCCRF or the Competition Council. Minutes must be signed by the DGCCRF’s investigators, the police officer and the occupant of the premises or his representative.
          Christophe Clarenc, Latham & Watkins (Paris), Frédéric Pradelles, Latham & Watkins (Paris), Antitrust encyclopedia: France, November 2007
          Question.: 634
Pays.....: 10
Article..: 15673
          Case law
          • Jérôme Philippe, Aude Guyon,  The French Minister of Economics sanctions for the second time companies for a breach of merger remedies (TF1 / AB Groupe),  17 November 2008, e-Competitions, n°23837, www.concurrences.com
          • Marie-Charlotte Rouzier,  The French Supreme Court acknowledges the boundaries of the transmission of information between criminal courts and the national competition authority (Colas Ile-de-France Normandie),  15 January 2008, e-Competitions, n°15717, www.concurrences.com
          • Marie-Charlotte Rouzier,  The French Competition Council sets the boundaries of the transmission of information from a criminal Court (Le Foll),  30 January 2007, e-Competitions, n°13237, www.concurrences.com
          • Marie-Charlotte Rouzier,  The French Competition Council further acknowledges the modalities governing the communication of documents from criminal Courts (Ile-de-France Public works),  21 March 2006, e-Competitions, n°13294, www.concurrences.com
          • Eric David,  Cooperation among national authorities in the European Competition Network,  e-Competitions, n°22157, www.concurrences.com

      • What are the stages of the investigation? Which bodies are responsible for each of these stages? How long does an average investigation take?

        •  France

          Standard proceedings
          The Competition Council may start proceedings upon a petition by enterprises, regional and local administrations, professional associations, and chambers of commerce, trade union organisations or consumer associations, the DGCCRF or on its own initiative. Investigations can be carried out by the DGCCRF at the request of the Minister. The DGCCRF investigations shall give rise to minutes or, if applicable, a written report which will be communicated to the Competition Council but not to the parties. Once the matter is referred to the Competition Council, a case-handler is appointed by the Rapporteur Général for the purposes of the investigation of the case under his supervision. The case-handler has identical powers as the DGCCRF for the purposes of the investigation of cases. He may organise investigation hearings with the parties. The DGCCRF may also conduct additional investigation at the case-handler’s request. Once the investigation is complete, the case-handler may reach various conclusions:
          -  the complaint is not admissible and the Competition Council should reject it;
          -  there are no elements showing a possible infringement to competition rules and the Competition Council should reject the complaint;
          -  infringements to competition rules may have been committed and a statement of objections is drafted (“notification de griefs”); the procedure becomes interpartes once this document is sent to the parties and the DGCCRF Official, which then have access to the file and may comment upon the statement of objections within two months from the notification of the statement of objections; based on the comments received, a report is then written by the case-handler and notified to the parties, the DGCCRF Official and the interested ministers, must provide their comments within two months.
          In all three cases, the final decision is taken by the Competition Council.
          If the case does not raise any significant issues, the President or Vice-President of the Competition Council may decide there is no need for a report, i.e., the case should be managed under the “simplified procedure”. In this event, fines are limited to EUR 750,000 for each undertaking found in breach.
          The final decision as to the infringement of competition lies with the Competition Council and will be reached through a formal hearing. Hearings are not public and are only open to the parties and the DGCCRF Official. Parties may be assisted by a lawyer and have the right to be heard. The Competition Council may also hear any third person as it deems fit. The Rapporteur Général or a Deputy Rapporteur Général and the case-handler also provide oral observations at the hearing.
          As to the duration of the proceedings, according to the Charter of cooperation and objectives signed between the DGCCRF and the Competition Council on 28 January 2005, an average investigation (i.e., from the Minister’s referral or date of communication of the investigation report if the matter was brought by a third part, until the formal decision by the Competition Council) shall not exceed twelve months for ordinary cases and eighteen months for complex cases. This deadline might be extended by six months in the event of particular difficulties.
          Negotiated proceedings
          NEGOTIATED SETTLEMENT
          Following the adoption of the Law of 15 May 2001, the negotiated settlement procedure was introduced into French law under Article L. 464-2 III Commercial Code. Its advantage for companies is that it can lead to a substantial reduction of fines. Applications for such procedure are admissible provided that two conditions are met: the undertaking:
          (i) shall not dispute the objections (“griefs”) stated against it, and (ii) shall give substantial, credible and verifiable commitments to alter its behaviour in the future. However, the undertaking may contest elements related to the severity of the offence. No report shall be written and the case will go directly to the hearing before the Competition Council.
          COMMITMENT PROCEDURE
          Further to the adoption of Regulation 1/2003, the commitment procedure was introduced into French law through the Ordinance of 4 November 2004 (Article L. 464-2-I Commercial Code). Such procedure cannot be implemented in cartel cases. The Competition Council is empowered to accept commitments provided that:
          (i) they are substantial, credible and verifiable and (ii) they put an end to the Competition Council’s competition concerns identified during its preliminary assessment. Commitments may not be offered after a statement of objections has been issued.
          In the event the Competition Council accepts commitments in a formal decision, such commitments become binding and proceedings are brought to an end without any fine. Moreover, pursuant to the Ordinance, there is no recognition of an infringement to competition rules. However, in the event of non-compliance with commitments, the Competition Council may impose fines for breach of the commitments (Article L. 464-2 Commercial Code).
          For more on dawn-raids, see:
          -  Valérie Michel Amsellem, Inadmissibility of the appeal directed against the revocation of a decision to stay proceedings pending a final decision on the legality of the visits and seizures (Colas), Concurrences, N° 2-2006, pp. 140-141, in French
          -  Valérie Michel Amsellem, Procedural framework for case handling: A new framework for the cooperation of the 2 French NCA ?, Concurrences, N° 3-2005, pp. 123-125, in French
          -  Valérie Michel Amsellem, Dawn-raids : The French Supreme Court rules on the lawfulness of NCA dawn-raids, Concurrences, N° 2-2005, pp. 92-93, in French
          Christophe Clarenc, Latham & Watkins (Paris), Frédéric Pradelles, Latham & Watkins (Paris), Antitrust encyclopedia: France, November 2007
          Question.: 635
Pays.....: 10
Article..: 15674

      • Who enforces these powers? Are Courts involved? Are interim measures available? What are the relevant provisions?

      • What are the sanctions for non-compliance? What are the relevant provisions?

        •  France

          Article L. 450-8 Commercial Code provides that any opposition to the investigators in charge of investigations is punishable by a six month prison sentence and a fine of EUR 7,500. The procedure set forth in articles L. 463-4 and R. 463-4 Commercial Code allows for the protection of business secrets, and thus no undertaking subject to an investigation or inspection may refuse to communicate documents to investigators on the ground that such documents contain business secrets or confidential information. According to these provisions, documents containing business secrets which are necessary to the procedure or to the protection of the parties’ rights are placed in a confidential annex and may only be disclosed to the DGCCRF Official and the parties to whom such documents, or parts of them are necessary to protect their rights.
          The parties may compile a list of documents containing business secrets and ask that they be placed in a confidential annex. Parties have to give substantiated reasons as to why the documents contain business secrets and provide a non-confidential version for that purpose. Should the documents neither be necessary to the procedure nor prejudicial to the parties’ rights, the President or the Vice President of the Competition Council may refuse communication and consultation of such documents and remove them from the file or have the confidential parts of such documents redacted. In the event that such documents are necessary for the procedure, the case-handler may ask for their delisting from the confidential annex. In that case, parties may object to the delisting before the President of the Competition Council who shall make the final decision as to whether the documents may be communicated to the parties or the DGCCRF Official.
          Christophe Clarenc, Latham & Watkins (Paris), Frédéric Pradelles, Latham & Watkins (Paris), Antitrust encyclopedia: France, November 2007
          Question.: 637
Pays.....: 10
Article..: 15677

      • What is the extent of the legal privilege?

      • Can personal premises (home, car...) be searched?

        •  France

          Personal premises may be searched only in the event of a formal investigation under judicial control (see: Article L. 450-4 Commercial Code). This type of investigation must be authorised by a particular judge, juge des libertés et de la détention or a judge delegated by the former upon a reasoned request of the Minister, the Rapporteur Général of the Competition Council or the EC Commission. This request must include all the information in the requesting party’s possession which justifies the investigation. The Commercial Code provides that the inspection may take place in the presence of the occupant of the premises or of the latter’s representative, and if they are absent, two witnesses chosen by the police officer designated by the judge among persons who are neither under his authority nor the authority of the administration of the DGCCRF or the Competition Council. Minutes must be signed by the DGCCRF’s investigators, the police officer and the occupant of the premises or his representative.
          Christophe Clarenc, Latham & Watkins (Paris), Frédéric Pradelles, Latham & Watkins (Paris), Antitrust encyclopedia: France, November 2007
          Question.: 640
Pays.....: 10
Article..: 15681

    • Fines, Sanctions & Penalties

      • What is the maximum level of fines? What are the relevant provisions?

      • How is the fine calculated?

        •  France

          The fine is calculated according to a series of criteria defined by Article L. 464-2 Commercial Code. Fines are proportionate to the severity of the alleged practices, the importance of the damage to the economy, the financial situation of the offender or the group to which it belongs and the likelihood of reiteration. Fines must be calculated on an individual basis and be legally justified. The maximum fine is divided by two in the event of negotiated settlements and is limited to EUR 75,000 when the case is handled under the simplified procedure. When the Competition Council accepts commitments, no fines shall be imposed. As detailed in answers to questions below, total or partial immunity from fines will be granted in the event of a successful leniency application.
          Christophe Clarenc, Latham & Watkins (Paris), Frédéric Pradelles, Latham & Watkins (Paris), Antitrust encyclopedia: France, November 2007
          Question.: 642
Pays.....: 10
Article..: 15683
          Case law
          • Charles-Louis Saumon, Pierre de Montalembert,  The French NCA fines several temping agencies nearly € 100 M, but grants significant reductions for certain parties who enter into innovative commitments (Adecco, Manpower, VediorBis),  2 February 2009, e-Competitions, n°25120, www.concurrences.com
          • Charles-Louis Saumon,  The Paris Court of Appeals upholds the French Competition Council’s decision on cement supply and distribution in Corsica but reduces fines (Corsican cement cartel),  6 May 2008, e-Competitions, n°19652, www.concurrences.com
          • Ombline Ancelin, Charles-Louis Saumon,  The Paris Court of Appeals upholds the French Competition Council’s decision on the railway laying and maintenance cartel but reduces fines (SNCF/ETF and SPTV),  2 October 2007, e-Competitions, n°15032, www.concurrences.com
          • Maria Hauser,  The French Competition Council publishes a revised leniency programme in line with the European Model Leniency Programme launched by the European Competition Network,  17 April 2007, e-Competitions, n°14051, www.concurrences.com

      • What is the trend of the NCA in terms of sanctions?

        •  France

          The amount of fines imposed by the Competition Council has continued to increase in the past few years and reached EUR 754.4 million in 2005 (out of which EUR 534 million were imposed in the mobile phone sector cartel only) and 128.2 million in 2006. Fines are viewed by the Competition Council as a key resource for deterring companies engaging into prohibited practices. In addition to fines, the Competition Council may issue cease or desist orders, impose injunctions and order the publication of the entire decision or an extract of it. The development and increasing use of “alternative” procedures to sanctions, i.e., negotiated settlements, leniency, as well as the commitment procedure, is particularly noteworthy.
          To read more on cartel fining, from a point of view of an academic member of the NCA, see: Emmanuel Combe, Constance Monnier, Le calcul de l’amende en matière de cartel: Une approche économique, Concurrences, N° 3-2007, pp. 39-45.
          Christophe Clarenc, Latham & Watkins (Paris), Frédéric Pradelles, Latham & Watkins (Paris), Antitrust encyclopedia: France, November 2007
          Question.: 643
Pays.....: 10
Article..: 15684
          Case law
          • Charles-Louis Saumon, Pierre de Montalembert,  The Paris Court of Appeal confirms the fines imposed in a collective boycotting case and its strict case law on standard of proof (Defibrillators),  8 April 2009, e-Competitions, n°26442, www.concurrences.com
          • Sergio Sorinas, Lionel Lesur,  The Paris Court of Appeal annuls a decision by the French Competition Council fining 7 physicians’ unions for colluding to increase their fees (Union nationale des médecins spécialistes confédéés a. o. vs Association Familles rurales),  18 March 2009, e-Competitions, n°26798, www.concurrences.com
          • Noëlle Lenoir, Marie-Laure Combet,  The French Competition Council finds the incumbent rail operator guilty of implementing discriminatory practices in favor of its online travel subsidiaries and for entering into an anti-competitive partnership (SNCF /Expedia),  5 February 2009, e-Competitions, n°25714, www.concurrences.com
          • Charles-Louis Saumon, Pierre de Montalembert,  The French NCA fines several temping agencies nearly € 100 M, but grants significant reductions for certain parties who enter into innovative commitments (Adecco, Manpower, VediorBis),  2 February 2009, e-Competitions, n°25120, www.concurrences.com
          • Jérôme Philippe, Aude Guyon,  The French Minister of Economics sanctions for the second time companies for a breach of merger remedies (TF1 / AB Groupe),  17 November 2008, e-Competitions, n°23837, www.concurrences.com
          • Charles-Louis Saumon,  The Paris Court of Appeals upholds the French Competition Council’s decision on cement supply and distribution in Corsica but reduces fines (Corsican cement cartel),  6 May 2008, e-Competitions, n°19652, www.concurrences.com
          • Jérôme Philippe, Aude Guyon,  The French Minister of Economy imposes a moderate fine for failure to notify a merger (SNCF Participations),  28 January 2008, e-Competitions, n°17549, www.concurrences.com
          • Marie-Charlotte Rouzier,  A French report takes sides towards de-penalization of anticompetitive practices (Coulon Report),  January 2008, e-Competitions, n°17559, www.concurrences.com
          • Ombline Ancelin, Charles-Louis Saumon,  The French Competition Council condemns vertical price-fixing agreements in the toy distribution sector (‘Toys Decision’),  20 December 2007, e-Competitions, n°15936, www.concurrences.com
          • Quentin Lebeau,  The French Competition Council fines € 3.3 million 5 companies for sharing information and agreeing on prices in public bids in the sector of aerial navigation (Thales, Ineo, Spie),  18 December 2007, e-Competitions, n°15372, www.concurrences.com
          • Mathilde Mason, France-Hélène Boret,  The French Minister of Economy fines for the first time a company for failure to notify a merger prior closing (Pan Fish),  8 December 2007, e-Competitions, n°13338, www.concurrences.com
          • Natasha A. Moskvina, Igor Simic,  The French Competition Council condemns practices restricting prices for medical services provided in public hospitals (Anatomic and Cyto Pathology services),  28 November 2007, e-Competitions, n°15718, www.concurrences.com
          • Aude Guyon,  The French Minister for Economics sanctions for the first time for a breach of merger remedies (Carrefour-ED/Treff),  21 August 2007, e-Competitions, n°14291, www.concurrences.com
          • Léna Sersiron, Mireille Dany,  The French Parliament passes a new law on trade negotiations (Loi de modernisation de l’économie),  23 July 2007, e-Competitions, n°20828, www.concurrences.com
          • Noëlle Lenoir, Dan Roskis, Charlotte-Mai Doremus,  The French Commercial Supreme Court partly annuls the Paris Court of Appeal’s judgment on illicit exchange of sensitive information in the mobile telephony cartel, thus strengthening the standard of proof (Bouygues Telecom SFR and Orange),  29 June 2007, e-Competitions, n°14050, www.concurrences.com
          • Maria Hauser,  The French Competition Council publishes a revised leniency programme in line with the European Model Leniency Programme launched by the European Competition Network,  17 April 2007, e-Competitions, n°14051, www.concurrences.com
          • Jérôme Philippe, Caroline Evrard,  The Paris Court of Appeal confirms the NCA’s record fine on three mobile telephony operators for exchanging confidential information and maintaining market shares (Bouygues Télécoms, SFR, Orange France),  12 December 2006, e-Competitions, n°12702, www.concurrences.com
          • Jérôme Philippe, Mathilde Mason,  The Paris Court of Appeal confirms the NCA’s decision sanctioning hotels for operating an illegal cartel by exchanging confidential commercial information (Parisian palaces),  26 September 2006, e-Competitions, n°12619, www.concurrences.com
          • Ivan Gurov,  The French Competition Council specifies the scope and the mechanism of its anti-cartel leniency programme by simultaneously issuing its first leniency decision and publishing a procedural leniency notice (Doors manufacturing),  11 April 2006, e-Competitions, n°532, www.concurrences.com
          • Romain Maulin, Sergio Sorinas,  The French NCA fines nearly 80 companies and trade associations for horizontal and vertical agreements in the sector of heating, sanitation, plumbing and air-conditioning products and clarifies the standard of proof applicable to anticompetitive meetings (Agreement in the sector of heating, sanitary, plumbing and air-conditioning products),  9 March 2006, e-Competitions, n°27308, www.concurrences.com
          • Jean-Patrice de La Laurencie,  The French Competition Authority fined three major national companies for implementing a cartel in the public passenger urban transport market, with potential appreciable effect on trade between member States (Keolis, Connex and Transdev),  7 July 2005, e-Competitions, n°251, www.concurrences.com
          • Laurence Idot, Catherine Prieto, Céline Gauer, Bernard Amory, Francesca Marchini Càmia, Jean-Christophe Roda, Christophe Lemaire, Marie-Barde Girard,  Les politiques de clémence en Europe,  July 2005, e-Competitions, n°19917, www.concurrences.com
          • Jacques Derenne, Lucas Niedolistek,  The Paris Court of appeal orders the telecommunications incumbent to offer third party operators a new technical and commercial offer giving appropriate access (France Telecom ),  11 January 2005, e-Competitions, n°179, www.concurrences.com

      • Are there criminal sanctions? What are these? What are the relevant provisions?

        •  France

          Pursuant to Article L. 420-6 Commercial Code), any individual who has fraudulently taken a personal and decisive part in anticompetitive practices faces up to four year’s of imprisonment and a fine of up to EUR 75,000. All known cases of French antitrust criminal cases have been commented in the e-Competitions Research program: Criminal sanctions, together with some other European jurisdictions cases.
          Christophe Clarenc, Latham & Watkins (Paris), Frédéric Pradelles, Latham & Watkins (Paris), Antitrust encyclopedia: France, November 2007
          Question.: 644
Pays.....: 10
Article..: 15685
          Case law
          • Marie-Charlotte Rouzier,  The French Supreme Court acknowledges the boundaries of the transmission of information between criminal courts and the national competition authority (Colas Ile-de-France Normandie),  15 January 2008, e-Competitions, n°15717, www.concurrences.com
          • Marie-Charlotte Rouzier,  A French report takes sides towards de-penalization of anticompetitive practices (Coulon Report),  January 2008, e-Competitions, n°17559, www.concurrences.com
          • Marie-Charlotte Rouzier,  The French Competition Council makes use of criminal proceedings to heavely sanction major anticompetitive practices in the course of public tendering (Ile-de-France secondary schools public works),  9 May 2007, e-Competitions, n°13826, www.concurrences.com
          • Marie-Charlotte Rouzier,  The French Competition Council sets the boundaries of the transmission of information from a criminal Court (Le Foll),  30 January 2007, e-Competitions, n°13237, www.concurrences.com
          • Sacha Raoult,  The French Criminal Supreme Court rules that company reselling products bought from its own branch can be convicted of below-cost price reselling (Décathlon),  22 November 2006, e-Competitions, n°13723, www.concurrences.com
          • Marie-Charlotte Rouzier,  The French Competition Council refers a bid-rigging case "likely to be qualified as criminal" to the public prosecutor (Furiani stadium),  6 June 2006, e-Competitions, n°13706, www.concurrences.com
          • Ombline Ancelin, Charles-Louis Saumon,  The French Competition Council implements the leniency procedure for the first time (Door manufacturing sector),  11 April 2006, e-Competitions, n°1144, www.concurrences.com
          • Marie-Charlotte Rouzier,  The French Competition Council further acknowledges the modalities governing the communication of documents from criminal Courts (Ile-de-France Public works),  21 March 2006, e-Competitions, n°13294, www.concurrences.com
          • Marie-Charlotte Rouzier,  The Paris Court of appeal set the boundaries of the power of the Competition Council to refer a case to a criminal Court (STAL/Ernée Viandes),  14 March 2006, e-Competitions, n°13295, www.concurrences.com
          • Marie-Charlotte Rouzier,  The French Competition Council refers a hard-core cartel to the public prosecutor (“Ready-made concrete stairs”),  22 February 2005, e-Competitions, n°13702, www.concurrences.com
          • Marie-Charlotte Rouzier,  The French Competition Council refers a hard-core cartel case to the public prosecutor (Bakery sector in the Marne department),  11 March 2004, e-Competitions, n°13703, www.concurrences.com
          • Eric David,  The French criminal supreme court upholds sentences inflicting prison, fines and damages for bid-rigging ("Le Havre lighting"),  22 October 2003, e-Competitions, n°13709, www.concurrences.com
          • Eric David,  A French Court overturned criminal sentences on the grounds that the undertakings did not play a decisive role and that the collusion did not produce a significant effect (AP-HP),  2 May 2002, e-Competitions, n°13154, www.concurrences.com
          • Marie-Charlotte Rouzier,  The French Competition Council refers a bid-rigging case to a criminal Court ("Moving of the Guyane military"),  9 April 2002, e-Competitions, n°13698, www.concurrences.com
          • Marie-Charlotte Rouzier,  The French Competition Council refers a case to the public prosecutor (Land-surveyors sector),  28 February 2002, e-Competitions, n°13701, www.concurrences.com
          • Eric David,  The French Criminal Supreme Court upheld sentences inflicting prison and damages for bid-rigging (Claude M.),  26 September 2001, e-Competitions, n°13708, www.concurrences.com
          • Eric David,  The French Criminal Supreme Court upheld sentences inflicting prison, fines and damages for bid-rigging ("Isère tarmac"),  16 May 2001, e-Competitions, n°13707, www.concurrences.com
          • Eric David,  A French criminal court imposed penalty to a professional organisation for practices aiming to limit access to the market (Georges C.),  22 January 1999, e-Competitions, n°13153, www.concurrences.com
          • Marie-Charlotte Rouzier,  The French Competition Council refers a bid-rigging case to the public prosecutor ("Paris police headquarters"),  2 November 1994, e-Competitions, n°13700, www.concurrences.com
          • Marie-Charlotte Rouzier,  The French Competition Council refers for the first time a bid-rigging case to a criminal Court ("Bordeaux moving sector"),  15 March 1994, e-Competitions, n°13699, www.concurrences.com
          • Marie-Charlotte Rouzier,  The French Criminal Supreme Court confirms criminal sanctions against the CEO of a national copyright-management society for excessive fees (X / SACEM),  26 January 1994, e-Competitions, n°26226, www.concurrences.com
          • Marie-Charlotte Rouzier,  The French Criminal Supreme Court rules on the first implementations of Art. L. 420-6 C. com. (PFG - Funeral Services of Avignon),  21 November 1991, e-Competitions, n°26239, www.concurrences.com

      • Can the appellate bodies review the sanctions and/or amount of the fine? What is the trend of the case law?

        •  France

          Appellate bodies are entitled to review both the sanctions and/or the amount of the fine. Fines may be substantially reduced on appeal. For example, the Paris Court of Appeals judgment of 26 June 2007 reduced the penalties imposed by the Competition Council in the Luxury Perfumes Distribution case by nearly half. For more on the Paris Court of appeals judicial review, see (in French): Michel Roseau, La Cour d’appel de Paris et le contentieux objectif du droit de la concurrence (2003-2006): Du contrôle à la régulation ?, Concurrences, N° 3-2007, pp. 72-80.
          Christophe Clarenc, Latham & Watkins (Paris), Frédéric Pradelles, Latham & Watkins (Paris), Antitrust encyclopedia: France, November 2007
          Question.: 645
Pays.....: 10
Article..: 15686
          Case law
          • Charles-Louis Saumon, Pierre de Montalembert,  The Paris Court of Appeal confirms the fines imposed in a collective boycotting case and its strict case law on standard of proof (Defibrillators),  8 April 2009, e-Competitions, n°26442, www.concurrences.com
          • Sergio Sorinas, Lionel Lesur,  The Paris Court of Appeal annuls a decision by the French Competition Council fining 7 physicians’ unions for colluding to increase their fees (Union nationale des médecins spécialistes confédéés a. o. vs Association Familles rurales),  18 March 2009, e-Competitions, n°26798, www.concurrences.com
          • Noëlle Lenoir, Dan Roskis, Charlotte-Mai Doremus,  The French Commercial Supreme Court partly annuls the Paris Court of Appeal’s judgment on illicit exchange of sensitive information in the mobile telephony cartel, thus strengthening the standard of proof (Bouygues Telecom SFR and Orange),  29 June 2007, e-Competitions, n°14050, www.concurrences.com

  • Europe & International

    • Europe

      • What is the trend for the NCA and Courts to enforce EC competition provisions?

        •  France

          Since the Law of modernization of the economy, the Authority is now the single French competition authority empowered to apply EU antitrust rules (articles 81 and 82 of the EC Treaty). The number of national or European cases applying EU competition law has been boosted: more than 900 hundred investigations and already some 300 final decisions between 1st May 2004 and 31 July 2008! None of these final decisions has raised an issue of inconsistent interpretation or implementation of the law that would have led the European Commission to take the case over from a national competition authority. Since the 1st May 2004, France has launched 166 new cases investigations applying EC law. In 2008 and 2009, the Autorité has enforced EC competition law in in 10 decisions on the merits (Decisions 09-D-16 of 8 April 2009, 09-D-10 of 27 February 2009,09-D-06 of 5 February 2009; 09-D-05 of 2 February 2009; 09-D-04 of 27 January 2009; 08-D-32 of 16 December 2008; 08-D-30 of 4 December 2008; 08-D-25 of 29 October 2008; 08-D-18 of 30 July 2008; 08-D-14 of 13 June 2009; 08-D-13 of 11 June 2009; 08-D-10 of 7 May 2008).
          Sarah Subremon, Autorité de la concurrence (Paris), Antitrust encyclopedia: France, June 2009
          Question.: 661
Pays.....: 10
Article..: 15702
          Case law
          • Guillaume Taillandier, Fani Skartouli,  The Paris Court of Appeal opposes to the Supreme Court on admissibility of evidence obtained without the knowledge of the companies under investigation (Phillips, Sony, Avantage),  29 April 2009, e-Competitions, n°26358, www.concurrences.com
          • Noëlle Lenoir, Marie-Laure Combet,  The French Competition Council finds the incumbent rail operator guilty of implementing discriminatory practices in favor of its online travel subsidiaries and for entering into an anti-competitive partnership (SNCF /Expedia),  5 February 2009, e-Competitions, n°25714, www.concurrences.com
          • Charles-Louis Saumon, Pierre de Montalembert,  The French NCA fines several temping agencies nearly € 100 M, but grants significant reductions for certain parties who enter into innovative commitments (Adecco, Manpower, VediorBis),  2 February 2009, e-Competitions, n°25120, www.concurrences.com
          • Juliette Goyer,  The French NCA sanctions the prohibition of Internet sales imposed on the members of a selective distribution network, under Art. 81.1 EC (Pierre Fabre Dermo-cosmétique),  29 October 2008, e-Competitions, n°22891, www.concurrences.com
          • Ombline Ancelin, Charles-Louis Saumon,  The French NCA fines a cosmetics manufacturer for prohibiting its selective distributors from selling its products on the Internet (Pierre Fabre Dermo-Cosmétique),  29 October 2008, e-Competitions, n°22998, www.concurrences.com
          • Juliette Goyer, Lauriane Lépine,  The French NCA sanctions four companies for bid rigging practices in the moderate-rent housing sector but significantly reduces the amount of the fine in application of the settlement procedure (Spid, Spid Anjou, Haute Mayenne Services, Onet Services),  11 June 2008, e-Competitions, n°21522, www.concurrences.com
          • Noëlle Lenoir, Dan Roskis, Marie-Laure Combet,  The French NCA applies for the second time leniency and highlights discrepancy with EC competition law on concerted practices’ burden of proof ("Removals cartel"),  18 December 2007, e-Competitions, n°16042, www.concurrences.com
          • Laura Cerny,  The French Competition Council fines a Belgian chocolate manufacturer for having imposed resale price maintenance for sales to works committees (Jeff de Bruges),  24 January 2007, e-Competitions, n°13206, www.concurrences.com
          • Juliette Goyer,  The French Competition Authority issues an opinion regarding a sharing of confidential information system designed for hotels under both Art. 81 EC and national provisions (CCI Mulhouse),  5 October 2006, e-Competitions, n°12635, www.concurrences.com
          • Juliette Goyer, Lauriane Lépine,  The French Competition Council fines an exclusivity purchase clause contained in a selective distribution agreement on the basis of both Art. 81.1 EC and French provisions (NGK Spark Plugs),  21 July 2006, e-Competitions, n°12430, www.concurrences.com
          • Ombline Ancelin, Charles-Louis Saumon,  The French Competition Council holds anticompetitive an exclusive purchase clause in a selective distribution agreement (NGK Spark Plugs),  21 July 2006, e-Competitions, n°12414, www.concurrences.com
          • Juliette Goyer, Lauriane Lépine,  The French Competition Council issues an opinion on the distinction between abusive and legitimate exercise of a trademark (UEEFL),  14 April 2006, e-Competitions, n°1321, www.concurrences.com
          • Olivia Davidson,  The French Competition Council deems that the pharmaceutical companies can, under certain conditions, impose quotas restricting parallel exports (Pharma-Lab / GlaxoSmithkline),  20 December 2005, e-Competitions, n°408, www.concurrences.com
          • Laura Castex,  The French Competition Council authorises pharmaceutical laboratories’ practices concerning drugs parallell imports and exports on the basis of both French and EC provisions (Pharma-Lab/GlaxoSmithkline),  20 December 2005, e-Competitions, n°449, www.concurrences.com
          • Jean-Patrice de La Laurencie,  The French Competition Authority fined three major national companies for implementing a cartel in the public passenger urban transport market, with potential appreciable effect on trade between member States (Keolis, Connex and Transdev),  7 July 2005, e-Competitions, n°251, www.concurrences.com
          • Jean-Patrice de La Laurencie,  The French Competition authority condemns an Agricultural Economic Committee for preventing access to the market and rejects the State’s action doctrine argument (Brittany cauliflowers),  15 March 2005, e-Competitions, n°2, www.concurrences.com
          • Alexandra Lamothe, Sylvie Grando,  The French Competition Council fines € 75.000 a price resale maintenance agreement in the weapons and ammunition distribution sector on the basis of both Art. 81 EC and national provisions (Browning Winchester),  24 February 2005, e-Competitions, n°168, www.concurrences.com
          • Jérôme Philippe, Charlotte-Mai Doremus,  The French Competition Council makes a rigorous analysis of the criteria of effect on trade between Member States and a broad application of the notion of agreement under Art. 81 EC and national provisions (Browning Winchester),  24 February 2005, e-Competitions, n°208, www.concurrences.com
          • Eric David,  Cooperation among national authorities in the European Competition Network,  e-Competitions, n°22157, www.concurrences.com

      • Is there any case of competition related Art. 234 EC preliminary requests to the ECJ?

        •  France

          The French administrative Supreme court (Conseil d’Etat) refers in 2008 to the ECJ in a state aid case for a preliminary ruling concerning the range of the obligation of national judge to staty the proceedings in the absence of a formal Commission decision (CE, 19 décembre 2008, Centre d’Exportation du Livre Français (CELF) et Ministre de la culture et de la communication, n° 274923 et 274967).
          Sarah Subremon, Autorité de la concurrence (Paris), Antitrust encyclopedia: France, June 2009
          Question.: 662
Pays.....: 10
Article..: 15703
          Case law
          • Lila Ferchiche,  A French Court of Appeal makes a reference for a preliminary ruling to the ECJ on whether a general and absolute ban on Internet sales by approved distributors does constitute a “hardcore restriction” on competition by object within the meaning of Art. 81.1 EC (Pierre Fabre Dermo-Cosmétique),  29 October 2009, e-Competitions, n°29700, www.concurrences.com
          • Jacques Derenne, Cédric Kaczmarek,  The French Council of State orders stay in proceedings regarding the recovery of unlawful aid in the CELF case and refer to the ECJ the question of the extent of the national courts’ obligation in such "exceptional circumstances" (CELF II),  19 December 2008, e-Competitions, n°26628, www.concurrences.com
          • Jacques Derenne, Cédric Kaczmarek,  A French Administrative Court of Appeal rules that a claim calling into question the validity of a decision of the Commission not to raise objection against alleged State aid measures raised serious difficulties requiring a preliminary ruling from the ECJ (Régie Networks),  12 July 2007, e-Competitions, n°28051, www.concurrences.com
          • Noëlle Lenoir, Dan Roskis,  In a preliminary ruling requested by the French Civil Supreme Court, the ECJ rules that pharmaceutical laboratories liable to a tax on direct sales of medicines are entitled to claim the reimbursement of the tax where the exemption of wholesale distributors constitute an illegal State aid (Boiron),  7 September 2006, e-Competitions, n°12429, www.concurrences.com
          • Elias Berkani,  The French Administrative Supreme Court confirms the classification as State aid of the subsidies granted for handling small orders of French-language books but refers to the ECJ for a preliminary ruling concerning the range of the obligation of restitution of an unnotified aid (CELF I),  29 March 2006, e-Competitions, n°1130, www.concurrences.com
          • Jacques Derenne, Alix Müller-Rappard,  The French Social Security Court seeks ECJ preliminary reference on whether tax financing retirement benefits amounted to State aid (Casino),  5 April 2005, e-Competitions, n°29835, www.concurrences.com
          • Elias Berkani,  The French Supreme Court refers to the ECJ for a preliminary ruling concerning (i) the repayment of a mandatory contribution based on the turnover of pharmaceutical laboratories and (ii) national rules of procedure leading to State aid classification (Laboratoires Boiron),  29 March 2005, e-Competitions, n°13, www.concurrences.com
          • Jacques Derenne, Cédric Kaczmarek,  The French Council of State makes preliminary reference to ECJ to confirm its interpretation of GEMO State aid ruling (Doux),  25 March 2005, e-Competitions, n°28648, www.concurrences.com
          • George Vallindas,  French Administrative Courts apply the ECJ’s preliminary ruling qualifying a tax on meat purchases as a State aid (GEMO, Nevers viandes, Lianoudis, Sobledis, Uni service Distribution, Honfleur, Picard surgelés),  23 March 2005, e-Competitions, n°14038, www.concurrences.com
          • Noëlle Lenoir, Dan Roskis,  The French Civil Supreme Court requested a preliminary ruling from the ECJ with regards to the implementation of the Ferring case law : Advocate General Tizzano supports the reimbursement of the tax on direct sales paid by French pharmaceutical laboratories (Boiron/ACOSS),  14 December 2004, e-Competitions, n°537, www.concurrences.com
          • Elias Berkani,  The French Supreme Court refers to the ECJ for a preliminary ruling concerning the qualification as State aid of the French mutual assistance tax for the benefit of traders and craftsmen (Magasins Galeries Lafayette),  16 November 2004, e-Competitions, n°209, www.concurrences.com
          • Loïc Grard,  A French Tribunal in charge of social security cases applied to the ECJ for a preliminary ruling asking whether a taxation’s exemption can be considered as not constituting State aid but mere compensation of public service costs (Ferring),  11 February 2000, e-Competitions, n°13634, www.concurrences.com
          • Stéphane Laget,  The French Supreme Administrative Court implemented the ECJ "Saumon" ruling while limiting the time-period of annulment of the un-notified aid (Saumon),  2 June 1993, e-Competitions, n°13354, www.concurrences.com

      • Is there any case where the Courts and/or the NCA asked for the assistance of the EC Commission? Is there a case where the EC Commission applied for amicus curiae?

        •  France

          Submissions in proceedings before national courts are possible - under article 15 of EC regulation n° 1/2003 - when pursued in the interest of a coherent application of Articles 81 and 82 of the Treaty. Oral observations are also permitted, provided the court in question so allows. In June 2009, the European Commission is preparing to submit an amicus curiae brief to the Paris Court of Appeal, in a case brought by medical cosmetics manufacturer Pierre Fabre Dermo-cosmétique against a decision of the Conseil (now relaced by the Autorité) condemning the prohibition of online sales by approved distributors (Decision 08-D-25 of 29 October 2008). In October 2008, the Autorité ordered Pierre Fabre Dermo-cosmétique - owner of brands of the likes of Avène, Klorane and Galénic - to alter provisions in contracts with approved distributors prohibiting the latter of selling certain cosmetics online. The Autorité concluded that the restriction of online sales “placed excessive restrictions on the commercial freedom of its distributors” and ran counter to national and European competition rules. Besides the injunction against the restrictive terms of the distribution agreements, the company was burdened with a 17 thousand euro fine.
          Sarah Subremon, Autorité de la concurrence (Paris), Antitrust encyclopedia: France, June 2009
          Question.: 663
Pays.....: 10
Article..: 15704
          Case law
          • Lila Ferchiche,  A French Court of Appeal makes a reference for a preliminary ruling to the ECJ on whether a general and absolute ban on Internet sales by approved distributors does constitute a “hardcore restriction” on competition by object within the meaning of Art. 81.1 EC (Pierre Fabre Dermo-Cosmétique),  29 October 2009, e-Competitions, n°29700, www.concurrences.com
          • Jérôme Philippe, Florence Kramer,  The Paris Court of Appeals received observations - submitted for the first time to a national court since adoption of Reg. n° 1/2003 - from the EC Commission (Garage Gremeau/Daimler Chrysler),  7 June 2007, e-Competitions, n°14289, www.concurrences.com
          • Noëlle Lenoir, Dan Roskis, Charlotte-Mai Doremus,  A French Court receives the first application ever from the EC Commission acting as amicus curia on the basis of Reg. N°1/2003 in a case concerning the application of the automotive block exemption (Garage Gremeau/Daimler Chrysler),  7 June 2007, e-Competitions, n°14966, www.concurrences.com

    • International

      • Is there cooperation with the other NCAs in cross border anticompetitive practices cases? How developed is this cooperation? Is there any Guide-lines or text?

        •  France

          Cooperation with the other NCAs in cross border anticompetitive practices cases is organised by Regulation 1/2003 and further explained in the Commission Notice on cooperation within the ECN of 27 April 2004 (OJ C 101, page 43). Cooperation within the network includes specific rules for case allocation between NCAs, exchange and use of confidential information on cases and assistance in investigations. In 2008, for the first time, the Autorité sought the assistance of the British competition authority, the Office of Fair Trading (OFT). The Autorité requested the assistance of the OFT in the case 08-D-30 (Decision of 4th December 2008), to carry out searches in the UK, where several of the companies involved in this practice have their headquarters. Without this collaboration, a lack of evidence would have prevented the investigation from being carried through to completion. The success of this coordinated effort demonstrates the highly active cooperation that has existed between national competition authorities and with the European Commission, since EU Regulation 1/2003 came into force on 1st May 2004.
          Sarah Subremon, Autorité de la concurrence (Paris), Antitrust encyclopedia: France, June 2009
          Question.: 664
Pays.....: 10
Article..: 15705

      • Is there extraterritorial enforcement of competition provisions ?

        •  France

          As a result of the adoption of Article 52 of Law n° 2001-420 of 15 May 2001, anticompetitive practices may be sanctioned by the Competition Council and/or national courts "[...] even through the direct or indirect intermediation of a company in the group established outside France" as long as such practices may hinder the functioning of competition in market(s) located in France (Article L. 420-1 Commercial Code, see translation by www.legifrance.gouv.fr).
          Sarah Subremon, Autorité de la concurrence (Paris), Antitrust encyclopedia: France, June 2009
          Question.: 665
Pays.....: 10
Article..: 15706
Author(s):
Nicolas Petit
Law Faculty - IEJE (Liege) Contact this author
Elise Provost
Sorbonne University (Paris), University of Liege (ULg) Contact this author
Christophe Clarenc
Latham & Watkins (Paris) Contact this author
Frédéric Pradelles
Latham & Watkins (Paris) Contact this author
Renaud Christol
Latham & Watkins (Paris) Contact this author
Sarah Subremon
Autorité de la concurrence (Paris) Contact this author

Citation: Nicolas Petit, Elise Provost, Antitrust encyclopedia: France, January 2009, www.concurrences.com