Jean-Philippe Kovar

Strasbourg Institute of Political Sciences
Professor

Jean-Philippe Kovar is professor in Public Law at the Strasbourg Institute of Political Sciences (IEP de Strasbourg). He was also professor at the University of Paris VIII and held lectured at the Ecole Nationale d’Administration (ENA), at the Academy of European Law (Trier)and at the University of Strasbourg. He lectures European Economic Law, Energy Law, Telecommunications Law and Administrative Law. His main fields of interests are Competition Law, Regulatory Law and Public Economic Law. He holds a PhD, a “DEA" in public business law and DEA in public law.

Articles

207686 Review

Jean-Philippe Kovar Public transport: The French Competition Authority issues several recommendations concerning the opening up of Ile-de-France bus networks to competition (Ile-de-France Mobilités)

53

On 16 September 2020, the Competition Authority issued an opinion on the opening to competition of the public passenger bus transport sector in Ile-de-France, at the request of Ile-de-France Mobilités ("IDFM"). As the sole organising authority for transport in Ile-de-France, IDFM, which (...)

Jean-Philippe Kovar Jurisdiction: The French Competition Authority declares itself incompetent to review certain practices allegedly committed by a departmental council of the Order of Physicians

33

Optical Center, a company specialising in the distribution of optical products that operates a network of approximately 550 stores in France, mainly under franchise, created in 2016 a laser surgery centre in downtown Lyon, on the first floor of a building on the ground floor of which is located (...)

Jean-Philippe Kovar Regulated professions: The French Competition Authority will develop new proposals for maps of the location of bailiffs and auctioneers to take into account the effects of the health crisis

29

On 22 July 2020, the Government asked the Competition Authority for two new proposals for maps of the areas where bailiffs and auctioneers are located, in order to take into account the health crisis and its impact on the economic activity of these two professions, which are expected to merge (...)

Jean-Philippe Kovar Public undertaking: The French Competition Authority notes that the intensity of competition in the market for the delegated management of heating networks is relative insofar as two players occupy a special place and notes the existence of barriers to entry

62

The annotated opinion was issued by the Competition Authority at the request of the Minister for the Economy and Finance as part of the exemption procedure provided for in Articles 34 and 35 of Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on the award (...)

Jean-Philippe Kovar Regulated professions: The French Competition Authority publishes its opinion on a draft decree on the methods for setting the regulated tariffs for legal professions

55

Pursuant to Article L. 444-7 of the French Commercial Code, the Minister of the Economy and Finance asked the Competition Authority for an opinion on a draft decree of the Conseil d’État aimed at amending the rules relating to the setting of regulated tariffs for certain legal professions. The (...)

Jean-Philippe Kovar Healthcare professions: The French Competition Authority recommends that the Government significantly relax restrictions on healthcare professionals’ advertising of their activities

30

The Minister of the Economy and Finance submitted to the Competition Authority for consultation six draft decrees on codes of ethics for the medical (doctors and dental surgeons) and paramedical (midwives, nurses, masseur-physiotherapists and chiropodists) professions. The Authority belatedly (...)

Jean-Philippe Kovar Merger: The French Competition Authority considers that the acquisition of Toulouse-Blagnac Airport by the Eiffage group rules out any risk of harm to competition in public works markets (Toulouse-Blagnac Airport / Eiffage)

169

The Competition Authority was called upon to rule, under merger control, on the acquisition by the Eiffage group of the 49.99% stake held by Casil Europe in the capital of the concession company for Toulouse-Blagnac airport (ATB). In its competitive analysis, the Authority emphasises in (...)

Jean-Philippe Kovar Public service mission: The French Competition Authority does not have jurisdiction to control access tariffs imposed by the Beauvais airport operator on bus operating companies (Fréthelle / SAGEB)

73

Fréthelle, which provides passenger transport services by coach linking Beauvais-Tillé airport to various destinations, brought an action before the Competition Authority against the Société Aéroportuaire de gestion et d’exploitation de Beauvais (SAGEB), which manages Beauvais-Tillé airport, and in (...)

Jean-Philippe Kovar Privatisation: The French Administrative Supreme Court considers legal the privatisation of the Toulouse-Blagnac Airport (French Ministry for the Economy and Finance, Casil Europe / M. Arrou)

43

The management of Toulouse-Blagnac airport, which is the third largest regional airport in France with more than 9 million passengers a year, was long granted by the State to the Toulouse Chamber of Commerce and Industry (CCI) and in 2007 was entrusted to ATB, whose capital was then entirely (...)

Jean-Philippe Kovar Public Service mission: The French Competition Authority recalls that it has jurisdiction to fine anti-competitive practices implemented by a professional order outside the scope of its public service mission (Architectural services)

59

The Competition Authority, which took up the matter ex officio following a report from the DGCCRF, sanctioned the Ordre des architectes and several architects or architectural firms for having infringed Articles 101 TFEU and L. 420-1 C. com. by implementing decisions of associations of (...)

Jean-Philippe Kovar Sectoral agreements:The French Competition Authority issues an opinion regarding the competitive effects of sectoral agreements’ extension and proposes a method to assess the impact on competition (Competitive effects of industry-wide agreements’ extension)

77

At the request of the Government, the Competition Authority, as part of its advisory function, has been called upon to examine the risks to competition that the extension of branch agreements by the administrative authority may represent. The opinion delivered by the Authority shows the (...)

Jean-Philippe Kovar Overseas territories: The French Competition Authority delivers a general diagnosis of competition in the French overseas territories and recommends strengthening its powers (Competition process in the French overseas territories)

93

The French Competition Authority was consulted by the Government on the functioning of competition in the import and distribution of consumer products in the French overseas departments and regions (DROMs), and delivered the results of its analyses on 12 July 2019. As highlighted in the press (...)

Jean-Philippe Kovar Boycott: The French Competition Authority declines its jurisdiction to hear allegations against the National Council of the Order of Doctors and the National Council of the Order of dental surgeons (Groupon / CNOM, CNOCD)

175

Groupon, which operates the eponymous website, filed two complaints with the French Competition Authority against the Conseil national de l’Ordre des médecins (CNOM) and the Conseil national de l’Ordre des chirurgiens-dentistes (CNOCD), alleging boycott practices contrary to Articles L. 420-1 of (...)

Jean-Philippe Kovar Boycott: The Paris Court of Appeal confirms that the French Competition Authority has not the power to sanction practices committed by the National Order of Nurses in the exercise of its public service missions (SOS-Infirmières)

143

The companies of the SOS-Infirmières group had referred to the Paris Court of Appeal the matter to the Competition Authority, which had declared itself partially incompetent and had rejected the referral for the rest for lack of sufficient evidence (Aut. conc, Dec. No. 18-D-01 of 18 January 2018 (...)

Jean-Philippe Kovar Regulated prices: The French Competition Authority gives a favourable opinion on a draft decree regulating prices charged by pharmacies at airports (Pharmaceutical)

97

Order No. 2018-3 of 3 January 2018 on the adaptation of the conditions for the creation, transfer, grouping and transfer of pharmacy dispensaries introduced special provisions for airports into the Public Health Code. This ordinance replaced the criterion of the annual number of passengers at (...)

Jean-Philippe Kovar Freedom of establishment: The French Competition Authority makes new recommendations to encourage the gradual establishment of new notaries (Freedom of establishment for notaries)

63

Pursuant to Article L. 462-4-1 C. com., the Competition Authority gives the Minister of Justice, who is the guarantor, an opinion on the freedom of establishment of notaries, bailiffs and auctioneers. On this occasion, it formulates "recommendations to improve access to public or ministerial (...)

Jean-Philippe Kovar Regulated profession: The French Competition Authority calls on the legislator to examine the merits and scope of the legal monopoly of land surveyors (Land surveyors)

103

The Competition Authority was consulted by the Chambre syndicale nationale des géomètres-topographes (CSNGT) on a request for an opinion, mainly on the extent of the legal monopoly of surveyors. Topographical services, which consist of surveying the configuration of the premises and drawing up (...)

Jean-Philippe Kovar Freedom of trade and industry: The French Supreme Administrative Court and the French Administrative Appeal courts of Bordeaux and Marseille provide useful information on freedom of trade and industry (SEITA ; British American Tobacco France ; GRJ Bounty ; CNPA ; Geoffroy D. ; B. D. ; A. B.)

692

Several decisions handed down in recent months by the administrative courts have recalled the value and scope of the oldest of the economic freedoms enshrined in French law. For the record, the freedom of trade and industry, which derives from the law of 2-17 March 1791 (known as the "Allarde (...)

Jean-Philippe Kovar Jurisdiction: The French Competition Authority is not competent to sanction practices committed by the National Order of Nurses in the exercise of its public service mission (National Order of Nurses)

103

The company SOS-Infirmières and its subsidiaries offer various services designed to facilitate the practice of the profession of liberal profession nursing (provision of premises, provision of a telephone call reception service, an adapted computer tool, consumables such as sterile gloves, (...)

Jean-Philippe Kovar Consolidated prudential supervision: The General Court of the European Union rules that the European Central Bank may exercise prudential supervision over cooperative and mutual banking networks (Crédit mutuel Arkéa / BCE)

120

In two rulings handed down on 13 December 2017 in the context of the "mutual credit war" between the Crédit Mutuel group and Crédit Mutuel Arkéa, the Court of First Instance of the European Union provides useful clarifications on the status of the central bodies and their role in prudential (...)

Jean-Philippe Kovar Cross subsidies: The French Competition Authority recalls principles governing public undertakings operating in both monopolistic and competitive markets (Preventive archeology)

311

This decision, by which the Competition Authority accepted and made binding commitments proposed by the National Institute for Archaeological Research (INRAP), has already been commented on in the previous issue of the column "Unilateral practices" (Concurrences No. 3-2017, pp. 80-81, obs. A. (...)

Jean-Philippe Kovar Access: The French Competition Authority is in favour of establishing a competitive examination to become Court Registrar of the Commercial Court (Court Registrar of the Commercial Court)

97

Article 61 of Act No. 2015-990 of 6 August 2015 on growth, activity and equal economic opportunities empowered the Government to take, by ordinance, "any measure falling within the scope of the law to improve, by means of a competitive examination, by setting the financial conditions for this (...)

Jean-Philippe Kovar Economic activity: The French Supreme Administrative Court holds that the procurement ombudsman does not exercise any economic activity (Perez et Ordre des avocats de Paris)

351

The Conseil d’État has been seized of an appeal for misuse of power lodged against Decree No. 2016-360 of 25 March 2016 on public procurement contracts, and recalls the conditions for intervention by public entities in a market. The Paris Bar Association argued that Article 142 of the Decree of (...)

Jean-Philippe Kovar Competition by quality : The French competition authority formulates several recommendations concerning development of competition in the household packaging sector

143

In accordance with Article 4 of Decree No 92-377 of 1 April 1992, any producer or importer whose products are marketed in packaging or, if the producer or importer cannot be identified, the person responsible for first placing these products on the market, is required to contribute to or (...)

Jean-Philippe Kovar Prerogatives of public power: The French Competition Authority is not competent to sanction alleged practices against the Confédération Nationale du Crédit Mutuel in the banking sector (Crédit Mutuel)

237

The decision under observation forms part of a series of disputes between Crédit Mutuel Arkéa (CMA) and Confédération nationale du Crédit mutuel. Crédit Mutuel is a mutual banking network organised at three territorial levels: the 2 100 local mutual banks, each of which is a member of one of the 18 (...)

Jean-Philippe Kovar Concept of undertaking: The French Competition Authority considers that an organization charged with management of a students compulsory social security scheme is not an undertaking within the meaning of competition law

144

Seized by seven regional student mutual insurance companies (SMER), the Competition Authority was called upon to rule on allegations of anti-competitive practices in the student social protection sector, which includes student social security and complementary health insurance activity. The (...)

Jean-Philippe Kovar Insurance: The French Supreme Administrative Court controls the legality of a recommendation made by the Prudential Supervision and Resolution Authority (Fédération française des sociétés d’assurance)

162

The French Federation of Insurance Companies brought an action before the Conseil d’État on grounds of misuse of powers against Recommendation 2014-R-01 of 3 July 2014 of the Autorité de contrôle prudentiel et de résolution (ACPR) on agreements concerning the distribution of life insurance contracts (...)

Jean-Philippe Kovar Cartel: The Court of Justice of the European Union considers that Article 101 TFEU applied with Article 4, § 3 TEU is not contrary to a national law prohibiting prices of good transport services by road to be below it minimal costs of exploitation set up by the national Administration (Salumificio Murru / Autotrasporti di Marongiu Remigio)

196

The Italian legislation provides, as regards contracts concluded orally, that the price of road haulage services for hire or reward may not be less than minimum operating costs to be fixed by the Road Transport Observatory. This Observatory shall be composed of ten members chosen by the (...)

Jean-Philippe Kovar Exclusif right: The French Competition Authority reminds the rules for the award of exclusive rights to economic operators (Bureau de Recherches Géologiques et Minières)

175

The Bureau de Recherches Géologiques et Minières (BRGM) is a public industrial and commercial establishment in charge of a number of missions related to post-mining risk management. Since a decree of 4 April 2006 (decree n° 2006-402 of 4 April 2006 modifying decree n° 59-1205 of 23 October 1959 (...)

Jean-Philippe Kovar Regulated legal professions: The French Competition Authority regrets that the new decree regarding price regulation of certain law professionnals does not include most of its recommendations contained in two successive opinions

102

Since the entry into force of Law No. 2015-990 of 6 August 2015 on growth, activity and equal economic opportunities, the regulated rates applicable to the services of auctioneers, commercial court clerks, bailiffs, court administrators, legal representatives and notaries, as well as the rights (...)

Jean-Philippe Kovar Banking sector : The French Competition Authority recommends better information on the tariffs of bank guarantee but does not require decoupling of credit offers and surety deals

118

Following a request for an opinion from the Union Fédérale des consommateurs - Que Choisir (UFC-Que Choisir), the Competition Authority was asked to give an advisory opinion on the competitive operation of the real estate bank guarantee market. The consumer association was concerned about the (...)

Jean-Philippe Kovar Public transports : The French Competition Authority supports, under certain conditions, the introduction of a pricing package for taxis journeys between Paris and the Paris airports

83

The Competition Authority had before it, in an advisory capacity, two draft decrees and orders providing for four maximum mandatory flat-rate amounts for taxi fares between Roissy-Charles-de-Gaulle and Paris-Orly airports and the right and left banks of Paris, as well as the introduction of (...)

Jean-Philippe Kovar Privatisation : The French Senate discusses the economic growth and activity draft law which strengthens the legal framework of privatisation and State’s shareholder powers

195

Senate, April 7, 2015, Growth, Activity and Equal Economic Opportunity Bill (1st reading) The bill for growth, activity and equal economic opportunities, considered as adopted in first reading by the National Assembly following the rejection, on 19 February 2015, of the motion of censure (...)

Jean-Philippe Kovar Postal services : The Court of Justice of the European Union states that a system of quantity discounts per sender set by a universal service provider does not violate the principle of non-discrimination in postal tariffs laid down by Article 12 of Directive 97/67/EC (Bpost)

367

CJEU, 11 Feb. 2015, bpost v. Belgian Institute for Postal Services and Telecommunications (BIPT), case C-340/13 Reference for a preliminary ruling by the Cour d’appel de Bruxelles (Brussels Court of Appeal) in a dispute between the provider of the universal postal service in Belgium (bpost) and (...)

Jean-Philippe Kovar Public domain : The French Competition Authority declines jurisdiction to sanction anti-competitive practices that can not be separated from management of the public domain

194

The Competition Authority has received a complaint for abuse of a dominant position and anti-competitive agreements against the Grand Port Maritime de Marseille (GPMM) and several successive occupants of the public port domain, and is applying the Aéroports de Paris and Gisserot jurisprudence of (...)

Jean-Philippe Kovar Energy - Unbundling of accounts : The French Energy Regulatory Commission approves the incumbent operator’s suggestions for unbundling of accounts for energy supply activities between final clients with regulated tariffs and final clients with market offer

202

Article L. 111-84 of the Energy Code requires EDF and local distribution companies to separate, for accounting purposes, the supply of electricity to final consumers who have exercised their right to choose their supplier freely from the supply to final consumers who have not exercised that (...)

Jean-Philippe Kovar Gas - Public networks : The French Energy Regulatory Commission approves the user tariffs of natural gas public distribution networks for two new gas leasing agreements

129

Article L. 432-6 of the Energy Code authorises municipalities or public establishments for inter-municipal cooperation that do not have a public natural gas distribution network or whose service works are not in progress to concede the public distribution of gas to a company approved for this (...)

Jean-Philippe Kovar Health insurance : The French Competition Authority declines competence to review the decisions refusing access to the system of secure electronic exchanges between health professionals and health insurance providers (Caisse Nationale d’Assurance Maladie)

161

Celtipharm, a company specializing in the engineering of economic data in the health and research sector, had filed a complaint with the Competition Authority for abuse of a dominant position against the Caisse Nationale d’Assurance Maladie des Travailleurs Salariés (CNAMTS) and GIE SESAM-Vitale. (...)

Jean-Philippe Kovar Public health : The French Competition Authority considers that compulsory certification of prescription and dispensation assistance softwares does not impair free competition

158

Prescription support software and dispensing support software are IT solutions that support doctors and pharmacists, respectively, when prescribing and dispensing medicines, in particular by indicating the existence of possible contraindications, interactions or overdoses. These software (...)

Jean-Philippe Kovar Energy infrastructures : The French Regulatory Commission of Energy publishes its methodology and the criteria used to evaluate investments in electricity and gas infrastructure projects

140

By this decision, taken in application of Article 13, § 6 of Regulation No. 347/2013/EU of the European Parliament and of the Council of 17 April 2013 on guidelines for trans-European energy infrastructure, the CRÉ sets the methodology and criteria for assessing electricity and gas infrastructure (...)

Jean-Philippe Kovar Motorway concessions : The French Competition Authority considers that the exceptional profitability of the historic toll road concession-holders is comparable to a guaranteed income which needs to be better regulated in favor of the State and the users

159

When the Finance Committee of the National Assembly asked the Competition Authority for an opinion on the basis of Article L. 462-1 of the French Commercial Code, the Authority had to draw up an assessment of the motorway sector almost ten years after the privatisation of the motorway (...)

Jean-Philippe Kovar Electronic communications : The French Supreme Administrative Court upholds entirely the NRA’s decision on wholesale DTT broadcasting market for 2012-2015 (TDF, Towercast, MR5)

115

Since 2006, the Autorité de régulation des communications électroniques et des postes (ARCEP) has been subjecting the upstream wholesale market for terrestrial terrestrial television broadcasting services in digital mode to ex ante regulation (ARCEP, dec. 06-0160 of April 6, 2006 on the definition (...)

Jean-Philippe Kovar Public service: The French Energy Regulation Commission specifies the technical and accountable information that must be submitted by the electricity suppliers to fix the amount of public service charges for electricity

73

This CRE deliberation of 29 January 2014 repeals and replaces the deliberation of 5 February 2013 on the rules of appropriate accounting for suppliers bearing public electricity service charges. It essentially reiterates its provisions, but introduces some changes to the list of technical and (...)

Jean-Philippe Kovar Freedom of entrepreneurship: The Council of State considers the Prime Minister has the power, acting as police authority, to submit activity of car repair to authorization by the Prefect (Rapidépannage 62)

861

The Rapidépannage company requested the cancellation for excess of power of decree no. 2012-953 of 1 August 2012 sanctioning breakdown services carried out without approval on motorways and civil engineering structures conceded on the national road network. This decree inserts into the Highway (...)

Jean-Philippe Kovar Public networks : The French Energy Regulatory Commission proposes to repeal some of the provisions of the Decree n° 2001-365 of 26 April 2001 on tariffs for the use of the transmission and distribution public networks

92

Pursuant to Article L. 341-5 of the French Energy Code, as amended by Act no. 2013-619 of 16 July 2013 containing various provisions for adapting to European Union law in the area of sustainable development, it is the responsibility of the Energy Regulation Commission (CRE) to propose to the (...)

Jean-Philippe Kovar Jurisdiction: The French Competition Authority has jurisdiction to sanction anticompetitive practices committed by craftmen’s guilds in Alsace-Moselle outside of any public service tasks (COPACO)

139

The company Alsace Dépannage, which specialises in the repair and towing of light vehicles and heavy goods vehicles, reproached the Compulsory Corporation of Automobile Professionals - Sectors of Colmar - Guebwiller & Ribeauvillé (COPACO) for having refused its registration on the duty (...)

Jean-Philippe Kovar Concept of undertaking – Essential facilities - Database: The Court of Justice retains that the holding and provision registry of companies by a public authority does not constitute an economic activity (Compass-Datenbank/Republik Österreich)

202

CJEU, 12.07.12, Compass Datenbank GmbH v. Republik Österreich, Case C-138/11 Reference has been made to the Court of Justice of the European Union for a preliminary ruling by the Supreme Court of Austria as to whether the Austrian State is acting as an undertaking within the meaning of (...)

Jean-Philippe Kovar Jurisdiction of the NCA: The French Competition Authority has no jurisdiction to sanction any anti-competitive practices committed by the administration during the transfer of heavy goods vehicle control centers to private sector (Desriac)

117

Aut. conc. dec. no. 12-D-13 of 15 May 2012 relating to a referral from the Desriac company and the national union of motor vehicle roadworthiness testing concerning practices implemented on the market for the roadworthiness testing of heavy vehicles The roadworthiness testing of heavy goods (...)

Jean-Philippe Kovar Concept of economic activity: The French Competition Authority is of the opinion that the draft decree providing to entrust a public body with the management of the new aid at home support for pensioners of the State does not affect competition

160

Aut. conc. opinion No. 12-A-10 of 12 April 2012 on a draft decree relating to the introduction of home help for state pensioners In April 2011, the Minister in charge of the Civil Service announced the creation of a new home help scheme for retired civil servants. This announcement followed (...)

Jean-Philippe Kovar Maritime services – Public service obligations: The French Competition Authority recommends the region of Corsica to consider the possibility of abandoning the public service delegation contract regime on maritime services between Marseille and Corsica (Shipping services between mainland France and Corsica)

216

Concise Aut. opinion n° 12-A-05 of 17 February 2012 on maritime transport between Corsica and the mainland Since 1976, services to Corsica have been provided in accordance with the principle of territorial continuity, which is intended to compensate for the island’s insularity by guaranteeing (...)

Jean-Philippe Kovar Public service concession: The French Competition Authority is not competent to review the legality of concession contracts (Secteur de la téléassistance aux personnes âgées)

311

Const. dec. no. 11-D-16 of 25 November 2011 on practices implemented in the field of telecare for the elderly In 1986, the Nord Departmental Council, together with 617 communes and groups of communes, set up a non-profit association, the Association pour la téléalarme du Nord (ATN), which was (...)

Jean-Philippe Kovar Jurisdiction – Competitive bidding procedures: The French Competition Authority has jurisdiction to sanction anti-competitive practices committed in the context of a competitive bidding procedure (Sector of dialysis treatment in Haute-Savoie)

156

Aut. conc. dec. no. 12-D-03 of 23 January 2012 concerning a referral from the Polyclinique de Savoie relating to practices of the Association for the Use of the Artificial Kidney (AURAL-Lyon) in the sector of the treatment of chronic renal failure by dialysis in Haute-Savoie Seizure by the (...)

Jean-Philippe Kovar Charges for services rendered: The Council of State cancels in part the airport charges “low cost” of the airport terminal of Marseille-Provence (Air France)

381

EC, 26 July 2011, Air France e.a., n° 329818 The Marseille-Provence Chamber of Commerce and Industry (CCI), which operates Marseille-Provence airport, opened France’s first terminal dedicated to "low-cost" airlines in 2006. The creation of this ’low cost’ terminal, known as MP2, which offers more (...)

Jean-Philippe Kovar Jurisdiction of the French Competition Authority: The French Competition Authority states the extent of its jurisdiction on the French Transmission System Operator (EDF and RTE)

473

Aut. conc. dec. no. 11-D-09 of June 8, 2011 concerning practices implemented by EDF and RTE in the electricity sector (See also, supra, "Unilateral Practices" column, obs. F. Marty and "Regulations" column, obs. E. Guillaume) The National Union of Independent Thermal Electricity Producers (...)

Jean-Philippe Kovar Jurisdiction of the French Competition Authority: The Court of Cassation rejects an appeal against a decision of the Court of Appeal of Paris (CNOCD, Santéclair)

436

Cass. com, June 7, 2011, National Council of the College of Dentists, No. 10-12.038, "Santéclair" This decision of the Court of Cassation, rejecting the appeal brought by the National Council of the Order of Dental Surgeons (CNOCD) and five departmental councils against a decision of the Paris (...)

Jean-Philippe Kovar Public property - Freedom of trade: The Administrative Court of Appeal of Paris rejects a request for stay of execution against a Judgement of Paris Administrative Court that annulled the decision reserving to a company the distribution of free newspapers in the metro and RER (RATP)

465

CAA Paris, 1st floor, April 14, 2011, RATP, No. 10PA05734 It will be recalled that the Paris Administrative Court, in a judgment dated November 5, 2010, overturned the decisions of RATP’s Director to sign a public domain occupation agreement with the company Bolloré SA, owner of the titles (...)

Jean-Philippe Kovar Concept of undertaking: The Court of Justice rules that the management of a scheme for supplementary reimbursement of healthcare costs by a non-profit-making legal person is a service of general economic interest justifying an exclusive right (AG2R Prévoyance/Beaudout Père et fils)

969

CJEU, 3 March 2011, AG2R Prévoyance, case C-437/09 This decision, already commented on in this review (see "Agreements", obs. C. Sarrazin and "unilateral practices", obs. A.-L. Sibony), is of double interest to the "Public Sector" column. It further clarifies the contours of the concept of an (...)

Jean-Philippe Kovar Freedom of trade and industry: The Administrative Court of Appeal of Bordeaux rules that the regulation of the opening and closing hours of establishments selling alcohol in public does not affect disproportionately the freedom of trade and industry (Préfet de la Haute-Garonne)

1071

CAA Bordeaux, 3rd ch., February 15, 2011, Prefect of the Haute-Garonne, nº 10BX01551 The Prefect of Haute-Garonne, acting as the general administrative police authority in the department, set the opening and closing hours of all establishments open to the public issuing alcoholic beverages by (...)

Jean-Philippe Kovar Concept of economic activity: The Paris Court of Appeal confirms that that the management of a website by the National family allowances fund is not an economic activity within the meaning of competition law (ENFenCONFIANCE)

773

against Aut. conc., Dec. no. 10-D-24 of 28 July 2010 relating to practices implemented by the Caisse Nationale des Allocations Familiales (National Family Allowances Fund) The National Family Allowances Fund (CNAF), a national public institution of an administrative nature, manages the "family (...)

Jean-Philippe Kovar Concept of undertaking: The Paris Court of Appeal confirms that the farmers’ social security organism is not an undertaking within the meaning of competition law (Caisse de la Mutualité Sociale Agricole de la Gironde)

622

against Aut. conc., Dec. no. 10-D-23 of 23 July 2010 relating to practices implemented by the Gironde agricultural social mutual insurance fund (caisse de la mutualité sociale agricole de la Gironde) A winegrower brought a case before the Competition Authority against the Caisse de la mutualité (...)

Jean-Philippe Kovar Online gambling: The French Competition Authority expresses competition concerns which appeared with the opening of the online gambling sector to competition and advocates a strenghtening of the French NRA powers (Online gambling sector)

726

Concordant Aut. opinion No. 11-A-02 of 20 January 2011 on the online gambling sector Law No. 2010-476 of May 12, 2010 on the opening to competition and regulation of the online gambling sector opened up the online gambling market to a limited extent, limited to horse betting, sports betting (...)

Jean-Philippe Kovar Economic activity: The French Competition Authority examines the competition issues raised by the third phase of construction of the tram network in Bordeaux (Tram of Bordeaux)

1056

Aut. conc. opinion No. 10-A-22 of 19 November 2010 concerning the project for the Bordeaux Urban Community to launch a contract for tramway trains as part of the extension of its network. More than ten years ago, the Bordeaux Urban Community (CUB) decided to provide the Bordeaux conurbation (...)

Jean-Philippe Kovar Freedom of trade and industry: The Administrative Court of Appeal of Marseille confirms the illegality of a road traffic regulation placing a disproportionate restriction on freedom of trade and industry (Mougins)

1214

CAA Marseille, 5 October 2010, Commune de Mougins, n° 08MA00066 By an order dated 16 October 2002, the mayor of the commune of Mougins had prohibited, by virtue of his road traffic police powers, the movement of heavy goods vehicles on the Chemin des Romains, the only access to the (...)

Jean-Philippe Kovar Public procurement: The French Competition Authority recommends a strict application of the exceptional legal provisions of the law n° 2010-597 of 3 June 2010 relative to Greater Paris concerning the markets for engineering and delegation of project management (Greater Paris transport)

1255

Aut. conc., Dec. No. 10-A-20 of 29 September 2010 on the effects on competition rules of certain provisions concerning the project to build the Grand Paris public transport network The Greater Paris project aims to encourage, through the creation of a 130 km double cross-loop public passenger (...)

Jean-Philippe Kovar Concept of economic activity - Management of a website: The French Competition Authority holds that the management of a website by the National family allowances fund is not an economic activity within the meaning of competition law (Caisse Nationale des Allocations Familiales)

1452

Aut. conc. dec. no. 10-D-24 of 28 July 2010 relating to practices implemented by the Caisse Nationale des Allocations Familiales (National Family Allowances Fund). The company ENFenCONFIANCE, which provides certain departments, under public service contracts, with services consisting of the (...)

Jean-Philippe Kovar Health sector - Boycott: The French Competition Authority affirms its jurisdiction to sanction anti-competitive practices that may have been committed by radiologists with the approval of administration (Centre hospitalier d’Arcachon)

1144

Aut. conc. dec. no. 10-D-25 of 28 July 2010 on practices concerning access to CT and MRI scanners located at the Arcachon hospital centre. The Arcachon hospital centre, a public health establishment, hosts on its site a scanner which it owns and MRI equipment belonging to a health cooperation (...)

Jean-Philippe Kovar Concept of undertaking - Social security: The French Competition Authority holds that the farmers’ social security is not an undertaking within the meaning of competition law (Caisse de la mutualité sociale agricole de la Gironde)

1126

Aut. conc. dec. no. 10-D-23 of 23 July 2010 relating to practices implemented by the caisse de la Mutualité Sociale Agricole de la Gironde The Competition Authority, having received a complaint for abuse of a dominant position against the Gironde Mutualité sociale agricole de Gironde on the (...)

Jean-Philippe Kovar Public subsidies: The French Competition Authority accepts two commitments to remedy the anticompetitive effects of subsidies (Conseil général du Pas-de-Calais)

1043

Aut. conc. dec. no. 10-D-18 of 14 June 2010 relating to practices implemented by the Pas-de-Calais General Council, the Groupement de défense sanitaire du bétail du Pas de Calais and the Groupement technique vétérinaire du Pas de Calais Articles L. 202-1 and R. 202-8 of the Code rural et de la (...)

Jean-Philippe Kovar Lawyer’s countersignature: The French Competition Authority considers that the lawyer’s countersignature does not affect competition on the legal services market

1068

Concise Aut. opinion No. 10-A-10 of 27 May 2010 on the introduction of the lawyer’s countersignature for private documents Following the conclusions of the Report on the Legal Professions resulting from the work of the commission chaired by Jean-Michel Darrois, the Government tabled a bill on (...)

Jean-Philippe Kovar Sports associations - Public service missions: The French Competition Authority monitors anticompetitive practices unrelated to public service missions of sport federations (Boule Obut et Palais des sports de Grenoble-Isère)

1435

Aut. conc. dec. no. 10-D-17 of 25 May 2010 on practices implemented on the market for competition pétanque boules The Fédération française de pétanque et jeu provençal (FFPJP) is a sports federation approved by the Minister responsible for sports on the basis of Articles L. 131-8 et seq. of the (...)

Jean-Philippe Kovar Freedom of trade and industry : The Administrative Nantes Court of appeal rules that the outright refusal to allow a professional photographer to take photo of works of art belonging to a town museum is contrary to freedom of trade and industry (Photo Josse)

1643

CAA Nantes, 2nd floor, 4 May 2010, EURL Photo Josse, n° 09NT00705 The Photo Josse agency, which specialises in the photography of works of art and which it distributes to publishers of school, artistic or historical books or magazines, has been refused permission by the mayor of Tours to (...)

Jean-Philippe Kovar Public domain - Jurisdiction of the NCA: The French Competition Authority holds that it has jurisdiction to sanction anticompetitive practices in the allocation of permission to occupy the public domain (Harbour handling - Port of Le Havre)

1185

Aut. conc. dec. no. 10-D-13 of 15 April 2010 on practices implemented in the handling sector for the transport of containers at the port of Le Havre Initiated at the beginning of the 1990s, the Port 2000 project should remedy the problems of saturation in the container port of Le Havre by the (...)

Jean-Philippe Kovar Conditions of the management of economic activity: The French Competition Authority recalls the conditions of the management of economic activity by a public body (Cinemas)

1401

Concordant Aut. opinion No. 10-A-02 of 1 February 2010 on digital equipment in cinemas The development of digital cinema and the dematerialization of film distribution in cinemas herald a profound transformation of the film industry. The gradual replacement of the silver print, which is (...)

Jean-Philippe Kovar New precision on the distribution of the skills: The French Competition Authority issues a decision providing further clarification in the division of powers between itself and administrative jurisdiction (Emergency transport)

2024

Concordance No. 09-D-35 of 25 November 2009 on practices implemented in the emergency medical transport sector. The Competition Authority declares itself incompetent to deal with anti-competitive practices in the emergency medical transport sector, on the basis of the Aéroports de Paris and (...)

Jean-Philippe Kovar Regulation of competition in the film industry: The French Competition Authority gives an opinion on the regulation of competition in the film industry (Cinema-moving pictures)

1977

Concise Aut. opinion n° 09-A-50 of 8 October 2009 relating to a draft ordinance amending certain provisions of the code of cinema and the moving image; Order n° 2009-1358 of 5 November 2009 modifying the code of cinema and the moving image, JORF n° 258 of 6 November 2009, p. 19209 In recent (...)

Jean-Philippe Kovar Revision of public policies : The French Competition Authority issues an opinion hinting at a general revision of public policies with regard to competition law (ONF)

1825

Aut. conc. opinion No. 09-A-33 of 29 September 2009 on the terms and conditions of timber sales by the National Forestry Office (ONF) This opinion highlights the risks to competition that may result from the reform of administrative institutions decided in the context of the General Review of (...)

Jean-Philippe Kovar Gisserot case law: The Paris Court of Appeal rules that anti-competitive practices in connection with the implementation of a public contract may be sanctioned by the Competition Authority (DKT International)

2041

CA Paris, 11 September 2009, DKT International and others. v Aut. conc. dec. no. 09-D-26 of 29 July 2009 relating to an application for interim measures brought by DKT International in the sector of the take-back and recovery of household plastic packaging waste The Paris Court of Appeal, (...)

Jean-Philippe Kovar Retail distribution - Overseas territories : The French Competition Authority calls for enhanced competition in the DOM (Import and distribution of convenience goods in DOM)

1763

Aut. conc. opinion No. 09-A-45 of 8 September 2009 on the mechanisms for importing and distributing consumer products in the overseas departments. Following the demonstrations and general strikes against the "high cost of living" that paralysed Guadeloupe, Martinique and Reunion Island in (...)

Jean-Philippe Kovar Commitments - Non-discriminatory access : The European Commission accepts commitments of the Greek Government of non-discriminatory access to coal mines (Greek lignite deposits)

1696

EC Commission, IP/09/1226, 6 August 2009, Commission accepts commitments by Greece to ensure fair access to Greek lignite deposits Electricity production from lignite represents in Greece, the fifth largest lignite producer in the world and the second largest producer in the European Union (...)

Jean-Philippe Kovar Creation of a new public transport service for passengers: The French Competition Authority draws attention to the necessary competitive conditions for the implementation of a regular transport service for people by means of river schuttles on the Seine river (« Voguéo »)

1869

Aut. conc. opinion No. 09-A-44 of 29 July 2009 on the project to implement a regular passenger transport service by river shuttles on the Paris b ief. The Syndicat des Transports d’Ile-de-France (STIF) has asked the Competition Authority to give its opinion on a project to extend the Voguéo (...)

Jean-Philippe Kovar Public procurement : The French Competition Authority issues a decision on public procurement and less than fair value prices (Travaux de voirie et d’entretien routier en région Rhône-Alpes)

2609

Const. dec. no. 09-D-20 of 11 June 2009 on the situation of competition in the road and road maintenance sector in the Rhône-Alpes Region By this decision to dismiss the case, the Competition Authority points out that the provisions of Article L. 420-5 of the Commercial Code relating to (...)

Jean-Philippe Kovar Compensation for public service obligations: The ECJ holds that Regulation n° 1191/69 precludes the grant of compensation where it is not possible to determine the amount of the costs imputable to the public service obligations (Antrop)

2419

ECJ, 7 May 2009, Antrop and Others v Conselho de Ministros and Others, Case C-504/07. The application of Council Regulation No 1191/69/EEC of 26 June 1969 on action by Member States concerning the obligations inherent in the concept of a public service in transport by rail, road and inland (...)

Jean-Philippe Kovar Notion of economic activity: The ECJ confirms the cases law Eurocontrol and Fenin on the notion of economic activities and the qualification of the purchase act (Selex Sistemi Integrati - Eurocontrol)

3786

ECJ, 26 March 2009, Selex Sistemi Integrati v Commission and Eurocontrol, Case C-113/07 P It will be recalled that on 12 December 2006 the Court of First Instance dismissed the action brought by Selex against a Commission decision refusing to classify the European Organisation for the Safety (...)

Jean-Philippe Kovar Public service concession: The French Competition Council rules again on the struggle for the maritime transport from Marseilles to Corsica (SNCM, CMN and Corsica Ferries)

2884

Conc. conc. dec. no. 09-D-10 of 27 February 2009 on practices implemented in the maritime transport sector between Corsica and the mainland This decision, commented on elsewhere in this review (see Chronique Pratiques unilatérales, note A. W., Concurrencesn° 2-2009), confirms the assessment made (...)

Jean-Philippe Kovar Hydroelectric concessions: The European Commission drops infringement proceedings against France concerning hydroelectric concessions (Hydroelectricity concessions)

3584

EC Comm, 27 November 2008, Press release IP/08/1793, France: elimination of the preference for the outgoing concession-holder in the case of hydroelectricity concessions The regime of hydroelectric concessions is set by the amended law of 16 October 1919 on the use of hydraulic energy. This (...)

Jean-Philippe Kovar Public service - Commercial operation: The Paris Court of Appeal confirms the French Competition Council’s jurisdiction in a case concerning practices implemented in the sector of the publishing and the sale of tourism monographs (Edition Jean-Paul Gisserot)

3049

CA Paris, 1st ch. H, October 29, 2008, Edition Jean-Paul Gisserot and Minister of the Economy; against Cons. conc., Dec. n° 08-D-08 of April 29, 2008, practices in the sector of publishing and sale of tourism monographs It will be remembered that the Jean-Paul Gisserot publishing house, which (...)

Jean-Philippe Kovar Railway infrastructures - Usages charges: The French Competition Council issues an opinion on the reform of charges for the use of the national railway network and the Government subsquently enacted a decree (Use of railways infrastructures)

2806

Cons. conc. opinion n° 08-A-18 of 13 October 2008 relating to a draft decree on charges for the use of the railway network; Decree n° 2008-1204 of 20 November 2008 amending Decree n° 97-446 of 5 May 1997 relating to charges for the use of the national railway network and Decree n° 2003-194 of 7 (...)

Jean-Philippe Kovar Exclusive right: The Council of State applies for an ECJ preliminary ruling on the compatibility with EU law of horse betting company’s exclusive right (Zeturf - PMU)

4024

EC, 9 May 2008, Zeturf Ltd, No 287503 Is the dispute between Pari Mutuel Urbain (PMU) and the Maltese company Zeturf Limited, which operates an online betting site for horse races, about to find its epilogue? It will be recalled that the Court of Cassation annulled the judgment of the Paris (...)

Jean-Philippe Kovar Public procurement: The ECJ rules on the enforcement of the EU procurement law to postal services (Asociación Profesional de Empresas de Reparto y Manipulado de Correspondencia)

4062

ECJ, 18 December 2007, Asociación Profesional de Empresas de Reparto y Manipulado de Correspondencia v Administración General del Estado, Case C-220/06. This judgment at the confluence of regulatory law and Community law on public procurement provides useful clarifications on the implementation (...)

Jean-Philippe Kovar Discriminatory prices: The French Competition Council penalizes the Havre port authority for having implemented several anticompetitive practices (Havre Manutention)

4812

Cons. conc. dec. n° 07-D-28 of September 13, 2007 relating to practices implemented by the Port Autonome du Havre, the Compagnie Industrielle des Poids du Havre, the Société Havraise de Gestion et de Transport and the company Havre Manutention. The Société Générale Maritime (Sogema) had referred the (...)

Jean-Philippe Kovar Public procurement: The French Competition Council is not competent to deal with the refusal of to carry out a public procurement procedure (Professional training in Picardie)

4537

Council Resolution, Dec. No. 07-D-27 of 31 July 2007 on practices implemented in the sector of continuing vocational training for job seekers in the Picardy Region This decision is a further application of the case law of the Tribunal des conflits on the division of powers between the (...)

Jean-Philippe Kovar Public service concession: The Council of State rules again on the allocation of maritime public concession between Corsica and the French mainland (Corsica Ferries)

4864

CE, 5 June 2007, Corsica Ferries, n° 305280 After the Competition Council, it was for the Conseil d’État to rule again on the renewal of the delegation of maritime public service between Corsica and the port of Marseilles (J.-Ph. K., Le Conseil de la concurrence se prononcer partie sur l’offre (...)

Jean-Philippe Kovar Public procurement: The French Competition Council fines 12 companies from the public buildings and works sector for anticompetitive practices during bidding process (Lycées d’Île-de-France)

5308

Cons. conc. dec. no. 07-D-15 of May 9, 2007 relating to practices implemented in public procurement contracts relating to high schools in the Île-de-France region The Île-de-France public procurement affair has gained media renown thanks to its criminal aspect revealing the politico-financial (...)

Jean-Philippe Kovar Airports: The Council of State confirms the validity of an economic regulation contract signed between the French Government and Aéroports de Paris (Fédération Nationale de l’Aviation Marchande)

4952

EC, 25 April 2007, Fédération Nationale de l’Aviation Marchande (FNAM) and others, No. 291976 The conclusion on 6 February 2006 of an economic regulation contract between the State and ADP was the first significant application of the reform of the method of regulating airport public service (...)

Jean-Philippe Kovar Public procurement: The French Competition Council rules again on the joint offer for the allocation of the maritime public service concession between Corsica and Marseille but rejects a request for new interim measures (SNCM-CMN )

4615

Conc. conc. dec. no. 07-D-13 of 6 April 2007 on new requests for provisional measures in the maritime transport sector between Corsica and the mainland This decision of the Competition Council is just one more episode in the very turbulent case of the renewal of the public service delegation (...)

Jean-Philippe Kovar Professional association: The French Competition Council holds that meetings and exchanges between competitors within an interprofessional association during a consultation by public authorities is not an anticompetitive agreement (Comité interprofessionnel du gruyère de Comté)

4724

Cons. conc. dec. no. 07-D-10 of 28 March 2007 concerning a complaint against the Comité interprofessionnel du gruyère de Comté (Interprofessional Committee for Comté Gruyère) The FMJ company specialising in the production and maturing of Comté cheese referred to the Competition Council four (...)

Jean-Philippe Kovar Postal services: The Government gives details about the financial conditions and the implementation of some missions of La Poste within the framework of postal universal service (Decrees 5 and 25 March 2007)

4506

Decree No. 2007-310 of 5 March 2007 on the national postal fund for territorial equalisation, JORF No. 56 of 7 March 2007, p. 4379 Decree No. 2007-448 of 25 March 2007 on the composition, powers and operation of the departmental commissions for territorial postal presence, JORF No. 74 of 28 (...)

Jean-Philippe Kovar State real property: The Prime Minister publishes a circular which moves toward commercial management of the the State real properties (Circulaire 28 February 2007)

5414

Prem. Min, Circular of 28 February 2007 relating to the modernisation of the management of the State’s real estate assets, JORF No. 53 of 3 March 2007, p. 4040. The Prime Minister’s circular of 28 February 2007 on the modernisation of the management of the State’s real estate assets is part of (...)

Jean-Philippe Kovar Scope of competition law: The CFI gives precise details about the notion of economic activity and confirms the case law Fenin about the qualification of the purchase act (Selex Sistemi Integrati)

7423

CFI, 12 December 2006, Selex Sistemi Integrati SpA v Commission, Case T-155/04. The legal nature of the activities of the European Organisation for the Safety of Air Navigation (Eurocontrol) is the source of a new judgment that is instructive on the concept of economic activity. An action for (...)

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