University of Aix-Marseille

Review

Frédéric Buy Control of tariff advantages : The Paris Court of Appeal clarifies the conditions for judicial review of price advantages within the meaning of 1° and 2° of article L. 442-6, I C. com. (MPH Distribution / Achats Marchandises Casino...)

10 May 2023 63

Commentators won’t complain, and neither will practitioners who need clear rules and guidelines (see the comments by J.-M. Vertut, Lettre de la distribution, June 2023, to be published in this issue): for some time now, the rulings handed down by the specialized chamber of the Paris court (...)

Marie Cartapanis Interim measures: The French Competition Authority issues interim measures to put an end to practices likely to constitute an abuse of a dominant position in the online advertising sector (Meta)

4 May 2023 84

A few months after committing to change its intermediation practices in the French non-search advertising market (Aut. conc., 16 juin 2022, déc. n° 22-D-12 relative à des pratiques mises en œuvre dans le secteur de la publicité sur internet, v. not. F. Marty, Engagements : L’Autorité de la (...)

Claire Mongouachon Unfair predatory practices: The European Commission amends its 2008 Guidelines and announces future guidelines to clarify and codify the application of Article 102 TFEU to abusive predatory practices

31 March 2023 113

Against a backdrop of profound and rapid market reconfigurations, the law on abuse of dominant positions is at a decisive stage in its evolution. While the European Commission is constantly reflecting on its interpretation, it has so far adopted only one text. In its 2008 Guidelines on the (...)

Frédéric Buy EGalim 3: The French Parliament adopts the law, called "EGalim 3", and defines, among other things, the conditions for the international application of Title IV of Book IV C. com.

30 March 2023 484

The law n° 2023-221 of March 30, 2023 tending to reinforce the balance in the commercial relations between suppliers and distributors has just been adopted (JO March 31). It will be remembered as the "Descrozaille law" or, more likely, as "EGalim 3", since it is the text that completed the (...)

Frédéric Buy EGalim 3: The French Parliament adopts the law, known as "EGalim 3", and specifies, among other things, the consequences of the aborted trade negotiations

30 March 2023 168

Article 9 of the "EGalim 3" law, which we presented earlier in these columns (see above), is certainly one of the most important and original provisions of the reform. Until now, it was known that the result of commercial negotiations between suppliers and distributors had to be set out in a (...)

Marie Cartapanis Notification thresholds: The Court of Justice of the European Union restores the Continental Can judgment and holds that Article 102 TFEU is capable of applying to a non-notifiable merger (Towercast)

16 March 2023 182

In a judgment of March 16, 2023, the Court of Justice of the European Union restored the 1973 Continental Can case law, according to which "itis liable to constitute an abuse if an undertaking in a dominant position strengthens that position to such an extent that the degree of dominance thus (...)

Claire Mongouachon Respect for freedom of expression: The Paris Court of Appeal overturns the decision of the Competition Authority in its entirety, rejecting the complaints of abuse of collective dominance in the AMD treatment sector (Novartis ; Roche ; Genentech)

16 February 2023 265

The Paris Court of Appeals has overturned Decision No. 20-D-11 of September 9, 2020, in which the French Competition Authority imposed a fine of €444 million on the Novartis and Roche/Genentech groups for practices involving abuse of a collective dominant position in the age-related macular (...)

Claire Mongouachon Imputability criteria : The Court of Justice of the European Union specifies the criteria for imputability to the dominant producer of acts committed through its distributors and clarifies the scope of the "competitor as effective as" test for exclusivity clauses (Unilever Italia)

19 January 2023 145

The main feature of this case is that it concerns acts committed not directly by the dominant operator, but through its distribution network. Indeed, it is for having imposed on its distributors exclusivity clauses with regard to the operators of sales outlets that, following a complaint from (...)

Marie Cartapanis Essential infrastructure: The Court of Justice of the European Union rejects the Bronner test when the abusive conduct manifests itself in the dismantling of a railway infrastructure (Lietuvos geležinkeliai)

12 January 2023 313

On January 12, 2023, the Court of Justice of the European Union handed down a judgment in which it reduced the scope of application of the conditions of the Bronner judgment and retained an autonomous form of abuse of a dominant position. The case concerned Lietuvos geležinkeliai ("LG"), the (...)

Frédéric Buy Action of the Minister: The Court of Justice of the European Union holds that an action by the Minister of Economy to obtain, in the context of an international dispute, the imposition of a civil fine, does not fall within the scope of “Brussels I bis” (Eurelec Trading)

22 December 2022 185

The important Eurelec ruling, handed down by the Court of Justice of the European Union on December 22, 2022, should not be hastily presented as a resounding victory for large-scale distribution and, in mirror image, as a bitter failure for Bercy, which the European judge would henceforth have (...)

Marie Cartapanis Equal access: The European Commission accepts commitments offered by an operator consisting of preventing it from using the data of active sellers and ensuring equal access to its market place and subscription program (Amazon)

20 December 2022 129

On December 20, 2023, the European Commission accepted the commitments proposed by Amazon, which followed two formal proceedings opened against the online retail giant. Two distinct behaviors were at issue. The first behavior was related to Amazon’s use of the non-public data it collected on (...)

Marie Cartapanis Food distribution: The French Competition Authority rejects the referral made by a company for abusively low prices in the bakery-pastry sector due to a lack of evidence (Fournil Nice Gambetta / Leclerc)

1 December 2022 90

On December 1, 2022, the French Competition Authority rejected, for lack of evidence, the referral made by a company against the Leclerc group for abusively low prices. The company, which operates a bakery, pastry and fast-food store in Nice, France, known to everyone as "Paul", accused the (...)

David Bosco Illumina-Grail, the threefold error of the EU General Court

November 2022 3537

The new interpretation of Article 22 of the Merger Regulation initiated by the European Commission has been confirmed by the General Court in the Illumina Grail case. However, it is clear that it is contrary to the spirit of the regulation. An administrative constraint with uncertain outcomes (...)

Claire Mongouachon Abuse of foreclosure: The French Competition Authority sanctions a supplementary social protection organization for having used the resources derived from its quasi-monopolistic activity to develop the activity of its subsidiary on the market of payroll management services for entertainment workers (Audiens SP)

15 November 2022 116

This decision provides a new case of abuse related to the use of a dominant company’s resources to confuse its activities with those of its subsidiary in an unusual sector. Following the transmission by the DGCCRF of a report by an interregional competition investigation unit, the Authority (...)

Claire Mongouachon Rail infrastructure charges: The Court of Justice of the European Union clarifies the conditions of articulation between the competence of the national courts in charge of applying competition rules and that of the sectoral regulatory authority in charge of controlling rail infrastructure charges (DB Station & Service / ODEG)

27 October 2022 102

In a delicate balancing act, the Court provides useful clarifications on the way in which the powers of the rail regulator are linked to the jurisdiction of the national courts responsible for applying the competition rules. The main case was between DB Station & Service, a subsidiary of (...)

Claire Mongouachon Abuse of foreclosure: The French Competition Authority sanctions a local natural gas supplier for having used the resources derived from its activity of supplying gas at the regulated sales tariff to develop its market offers by creating confusion in the minds of consumers (Gaz de Bordeaux)

11 October 2022 99

The gradual opening of the energy sector to competition has for years been the subject of constant vigilance and close monitoring by the regulatory authorities. While ENGIE and EDF have been regularly condemned for abuse of dominant position in the liberalized markets, the decision reported (...)

Marie Cartapanis Restrictions on online sales: The French Competition Authority sanctions a company and its subsidiary in the public health sector for unfair business practices aimed at restricting online sales in the French market (Essilor)

6 October 2022 126

Following an ex officio referral (decision 15-SO-07 of June 16, 2015), the French Competition Authority, after carrying out visits and seizures, jointly and severally sanctioned Essilor International SAS and Essilor Luxottica SA [hereinafter "Essilor"] for having implemented, for more than 11 (...)

Marie Cartapanis Abuse of economic dependence: The Paris Court of Appeal partially reverses the decision of the French Competition Authority sanctioning a smartphone manufacturer for abuse of economic dependence (Apple)

6 October 2022 257

In a decision dated October 6, 2022, the Paris Court of Appeal partially overturned Decision No. 20-D-04 of March 16, 2020, by which the French Competition Authority had sanctioned Apple and two of its wholesalers for various practices that had affected intra-brand competition. Let us (...)

Marie Cartapanis, Frédéric Marty Relevant market: The General Court of the European Union upholds the Commission’s decision imposing a record fine on the dominant operator for strengthening its dominant position in the markets for general internet search services and intelligent mobile operating systems (Google / Android)

14 September 2022 776

In a judgment of September 22, 2022, the General Court of the European Union largely confirmed the Commission’s decision that Google had imposed illegal restrictions on Android mobile device manufacturers and mobile network operators in order to consolidate the dominant position of its search (...)

Laurence Idot, David Bosco, Martine Behar-Touchais, Michel Debroux, Anne-Sophie Choné-Grimaldi, Benoît De Nayer, Pierre Petillault Digital market Act: Competition law and digital giants (Nanterre, April 1, 2022)

September 2022 2674

Abstract This issue is devoted to the Digital Market Act (DMA) regulation adopted this summer and designed to closely monitor the practices and behaviors of the main players in the digital economy. This regulation aims to remedy the supposed flaws and failures of ordinary competition law, by (...)

Frédéric Buy Legality: The Paris Commercial Court has referred to the French Administrative Supreme Court and the French Civil Supreme Court the question of the legality and constitutionality of the new Article L. 442-1, I, 1° C. com.

10 May 2022 211

For those concerned that the 2019 unfair trade practices law reform may have the 2019 unfair trade practices law may have affected freedom of contract, the two contractual freedom, the two Amazon judgments handed down on May 10, 2022 by the Paris Commercial Court are of primary importance. (...)

Marie Cartapanis Admissibility: The Paris Court of Appeal rejects an immediate appeal against a decision to refer the case back to the investigation and to reject the commitments (Sony)

21 April 2022 169

The success of the commitments procedure in the digital economy is growing. But in some cases, it is not enough. This is one of the lessons that can be drawn from the "Sony" case, in which the French Competition Authority launched a market test following a proposal of commitments made by the (...)

Marie Cartapanis Big Tech: The Paris Court of Appeal confirms a decision of the French Competition Authority but reforms certain injunctions following an abuse of dominant position in the online search advertising sector (Google)

7 April 2022 204

The Paris Court of Appeal has just confirmed, for the most part, the decision of the French Competition Authority (Autorité de la Concurrence) and reversed certain injunctions following an abuse of dominant position in the online search advertising sector(Google). On December 19, 2019, the (...)

Franck Audran, Martine Behar-Touchais, Frédéric Buy, Walid Chaiehloudj, Antoine Choffel, Sophie Harnay, Stéphane de La Rosa, Sophie Pelé, Marion Provost, Mélanie Thill-Tayara Emmanuel Macron, as Minister and President: a rather positive competitive record in competition law

May 2022 4929

What is the competition balance sheet of Emmanuel Macron, Minister of the Economy and then President of the Republic? It is remarkable that Emmanuel Macron had a very strong reforming will in competition and distribution law, by opening markets (regulated professions, bus transport, rail (...)

David Bosco, Niklas Brueggemann, Mercedes Pedraz Calvo, Marion Provost, Mélanie Thill-Tayara, Laurence Idot Private enforcement in Europe after Sumal

February 2022 2299

In 2021, the European Court of Justice handed down an important judgment on private enforcement in Europe. It held that a claimant for damages in a cartel action can sue the subsidiary of the offender. In reaching this conclusion, the Court relied on the concept of undertaking, as developed by (...)

Marie Cartapanis Settlement: The French Competition Authority sanctions the incumbent operator for abuse of a dominant position in the energy sector, but considerably reduces the fine following a procedure of non-contestation of grievances with commitments (EDF)

22 February 2022 251

On February 22, 2022, the French Competition Authority sanctioned EDF and its subsidiaries(Dalkia Smart Building, Citelum and CHAM) for having implemented practices of abuse of dominant position contrary to Articles L. 420-2 C. com. and 102 TFEU, following a complaint filed by the company (...)

Frédéric Buy, Gaël Chantepie, Jean-Christophe Grall, Audrey Illouz, Helen Coulibaly-Le Gac, Marie Doisy, Luc-Marie Augagneur Retail distribution law reformed once again: EGalim 2

February 2022 2495

A law dated 18 October 2021 aiming at protecting the payment of farmers, known as "EGalim 2", reforms distribution law by targeting the food sector. Upstream, the "contractualization" regime between producers and their first buyers is reinforced. Downstream, suppliers and distributors must (...)

Frédéric Buy Significant imbalance:The French Supreme Court rules for the first time that article 1171 C. civ. applies to contracts concluded between professionals, provided that they do not fall under the special provisions of article L. 442-1 C. com. (Locam / Greenday)

26 January 2022 298

Readers of the journal Concurrences may be surprised to find in these columns a commentary on a civil law decision. But, apart from the fact that it was eagerly awaited and that it is the first to rule, at the highest level, on the question of the scope of application of article 1171 C. civ., (...)

Marie Cartapanis Interim measures: The French Competition Authority rejects a request for interim measures in the electricity sector (EDF / Anode)

18 January 2022 157

Last September, the National Association of Retail Energy Operators (ANODE) referred the matter to the French Competition Authority, complaining of anti-competitive practices implemented by the company Électricité de France ["EDF"] on the market for the supply of electricity to small (...)

Martine Behar-Touchais, David Bosco, Catherine Prieto L’intensification de la réparation des dommages issus des pratiques concurrentielles, Martine BEHAR-TOUCHAIS, David BOSCO and Catherine PRIETO

November 2016 332

This section selects books on themes related to competition laws and economics. This compilation does not attempt to be exhaustive but rather a survey of themes important in the area. The survey usually covers publication over the last three months after publication of the latest issue of (...)

Frédéric Buy Burden of proof: The French Supreme Court rules that evidence obtained by the "mystery shopper" method is inadmissible (Rassemblement des opticiens de France / IMD Optic, Nagabbo)

10 November 2021 138

The Rassemblement des Opticiens de France, a professional association whose mission is to moralize and defend the ethics of the optician profession, organized "mystery customers" to visit various optical stores in order to verify the possible fraudulent practice of falsifying invoices by (...)

Frédéric Buy Significant imbalance: The Paris Court of Appeal ruled that article 1171 C. civ. should not be excluded in favor of the former article L. 442-6, I, 5° C. com. (Société commerciale de télécommunication / Entreprise de construction Duarte)

5 November 2021 127

The question of the relationship between the texts of the Civil Code and the Commercial Code relating to significant imbalance is not yet settled, and it is always with interest that one welcomes the judgments rendered by the judges of the merits, even if they are summarily motivated, which (...)

Benoit Blottin, Frédéric Marty, Guillaume Dezobry, Alexandre Eberhardt-Le Prévost, Christine Le Bihan-Graf, Raphaël Vuitton, Francesco Martucci, Laure Rosenblieh, Marie Lamoureux Competitive issues in the energy sector

November 2021 2291

This On-topic proposes to bring together the views of academics and practitioners on competition issues in the energy sector. Among the many questions raised by this vast subject, the authors have chosen to focus on themes that invite the reader to understand the extent to which the fourth (...)

Marie Cartapanis Countervailing Buyer Power: The French Competition Authority sanctions a company for foreclosing the molasses supply market for Réunion’s distilleries (Tereos Océan Indien)

2 November 2021 369

On Reunion Island, Tereos Océan Indien [hereafter "TOI"], a subsidiary of the Tereos group, owns the only two sugar factories on Reunion Island, namely the Sucrière de La Réunion, also known as the "Sucrerie du Gol", and the Sucrerie de Bois Rouge. The company is also the only supplier of (...)

Frédéric Buy, Nicolas Ferrier Grands arrêts du droit de la concurrence: Vol. III, Frédéric BUY and Nicolas FERRIER

May 2019 261

Marie Cartapanis Evidence: The French Competition Authority rejects referral for lack of evidence in the unsold press sector (Earta / France messagerie, Messageries Lyonnaises de Presse)

15 July 2021 139

In a decision dated July 15, 2021, the French Competition Authority rejected a referral for lack of sufficient evidence regarding practices implemented in the sector of the management of unsold newspapers. The company Earta is a so-called "adapted" company within the meaning of Article L. (...)

Marie Cartapanis Precautionary measures: The French Competition Authority rejects a request for interim measures in the sector of notarial real estate advertisements (Notariat services / ADSN)

24 June 2021 147

While notaries are prohibited from engaging in any stock market speculation or trading, banking, discounting and brokerage operations, the exercise, on a purely ancillary basis, of real estate negotiation activities practised on the occasion of or with a view to the receipt of a deed remains (...)

Marie Cartapanis AEC Test: The French Supreme Court confirms the analysis of the Paris Court of Appeal in the implementation of the equally effective competitor test (SNCF)

9 June 2021 272

Once again, the implementation of the "As Efficient Competitor" (AEC) test in the rail freight case (SNCF) is the subject of a ruling by the Commercial Chamber of the French Supreme Court. It is well known that this test, which stems from the Areeda and Turner rule and is enshrined in EU (...)

Frédéric Buy Non-solicitation clause: The French Supreme Court rules that a non-solicitation clause is only lawful if it is proportionate to the legitimate interests to be protected (Somado, Eurodis / Buropa)

27 May 2021 523

Non-solicitation clauses are not non-competition clauses. For an employer, it is not a matter of prohibiting his employee from engaging in a competing activity at the end of his contract, but, for a company, of prohibiting a commercial partner from soliciting (canvassing or hiring) its (...)

Catherine Prieto, Laurence Idot, Emmanuel Combe, Anne Wachsmann, David Bosco, Etienne Pfister, Mathilde Poulain, Marie-Cécile Rameau, Josep M. Carpi Badia, Étienne Chantrel, Didier Theophile, Guy Canivet, Rafael P. Amaro, Henri Piffaut, Doris Hildebrand, Paulo Burnier da Silveira, Fatma El-Zahraa Adel The integration of public interest considerations in the application of competition rules (26 Nov 2020)

May 2021 3253

The integration of public interest considerations is not only desirable, but possible because of the permeability of the competition rules to the reception of well-being by the competitive parameters of quality, choice and innovation in addition to that of price. The scope for progress depends (...)

Frédéric Buy Price discount: The Paris Commercial Court rules that a price discount cannot be controlled on the basis of the former Article L. 442-6, I, 1° C. com. (Ministre de l’Économie / Galec)

11 May 2021 185

In the last issue of this journal, one of our columnmates reported on a decision of the Paris Court of Appeal which had ruled, in a somewhat peremptory manner, that "judicial review of the price (...) does not take place outside of the significant imbalance", so that "the provisions of (...)

Frédéric Buy Significant imbalance: The French Supreme Court approves the Paris Court of Appeal’s ruling that a contract could be negotiated despite its wording in English and that a contractual asymmetry can be justified by the general scheme of the contract (Mobilead / France brevets)

31 March 2021 183

Here is a very interesting decision, which shows the limits of the "L. 442-1 argument" in typically contractual disputes(i.e. outside the Minister’s regulatory action). In this case, Mobilead had entered into a contract with France brevets with the aim, on the one hand, of strengthening and (...)

Frédéric Buy Significant imbalance: The Paris Court of Appeal refuses to transmit a priority question of constitutionality relating to the notion of "commercial partner" (Cometik / Parfip France)

3 March 2021 182

Readers will recall that, in a decision handed down on 15 January 2020, the Commercial Chamber of the Court of Cassation made an important clarification concerning the notion of "commercial partner", within the meaning of the former Article L.442-6, I, 2° C. com. (Cass. com., 15 Jan. 2020, n° (...)

Frédéric Buy Significant imbalance: The Paris Court of Appeal rules that the former article L. 442-6, I, 2° of the C. com. is applicable to contracts tacitly renewed after the entry into force of the Law on the modernisation of the economy (B. / Marc B.)

17 February 2021 113

The recasting of Title IV and the creation of a new article L. 442-1 succeeding the former article L. 442-6 did not extinguish, in one fell swoop, the difficulties of application of the old texts. A dispute recently submitted to the Paris Court of Appeal thus raised the question of the (...)

Marie Cartapanis Excessive pricing: The European Commission accepts commitments of a company to reduce prices in cancer drug sector (Aspen)

10 February 2021 288

See also, Law & Economics Webinar organised by Concurrences "Excessive prices in the pharmaceutical sector in the EU: The Aspen Decision", in partnership with Covington & Burling and CRA, with Miranda Cole (Partner, Covington & Burling), Raphaël de Coninck (Vice President, CRA), (...)

Frédéric Buy Reforms: The French Parliament adopts the “DDADUE” and “ASAP” laws on unfair commercial practices

3 December 2020 393

We won’t even pretend to be surprised anymore. Reforms of the law of commercial relations are being carried out at great speed without having had time to direct the previous ones and without always measuring their interest (on this phenomenon, G. Canivet, "L’histoire sans fin fin des lois (...)

Marie Cartapanis Private enforcement: The French Supreme Court confirms the existence of a civil fault attached to a dominant operator which did not separate its stakes into physical and online points of sale (PMU)

14 October 2020 323

On October 14, 2020, the Court of Cassation rejected the appeal brought by the economic interest group Pari Mutuel Urbain (PMU) in the case between it and the company Betclic (see Alain Ronzano, Civil fault: The Court of Cassation confirms the existence of a civil fault attributable to the (...)

Marie Cartapanis Discrimination: The Paris Court of Appeal upholds essential part of the decision requiring a search engine to negotiate with press publishers as interim measures (Google)

8 October 2020 217

It will be recalled that in a decision dated April 9, 2019, the Competition Authority had issued protective measures against Google in the context of a potential abuse of a dominant position (see our previous column, Discrimination : The French Competition Authority orders protective measures (...)

Frédéric Buy Mandatory rules: The Paris Court of Appel rules again that the provisions of the former article L. 442-6 of the French Commercial Code do not constitute mandatory rules (H.D / Cranes France)

8 October 2020 230

The Paris Court of Appeal enters in resistance. While the Court of Cassation now considers that the provisions of former article L. 442-6 C. com. constitute police laws within the meaning of international law (Cass. com., 8 July 2020, No. 17-31536, Concurrences 4-2020, p. 151, obs. F. Buy), (...)

Marie Cartapanis, Frédéric Marty Antitrust : The Subcommittee on Antitrust of the U.S. House of Representatives’ Judiciary Committee releases its report on its investigation of competition in digital markets and lays out prospects for radical changes in U.S. competition policy

4 October 2020 237

The report prepared by the Antitrust Subcommittee of the US House of Representatives Law Committee was made public in October 2020 and appears dated in view of the dramatic changes in the competitive environment in the US in the autumn of 2020. This is not only related to the change of (...)

Frédéric Buy Competence: The French Supreme Court asks the Tribunal des Conflits whether or not a liability action for abrupt termination of a commercial relationship directed against the incumbent operator in the rail sector falls within the jurisdiction of the judicial court (SNCF / Entropia-conseil)

9 September 2020 180

Should an action for liability for abrupt termination of an established commercial relationship brought by a consultancy firm against SNCF be brought before the courts or not? This is, in substance, one of the questions (the law of anti-competitive practices was also at issue) that the Court (...)

Catherine Prieto, Laurence Idot, Martine Behar-Touchais, Florian Bien, David Bosco, Josep M. Carpi Badia, Étienne Chantrel, Marta Giner Asins, Didier Theophile, Simon Vande Walle, Jérôme Vidal Towards a European merger control network

September 2020 1431

The European Competition Network (ECN), which is well-known as an effective mechanism of cooperation for the application of articles 101 and 102 TFEU, is not extended to merger rules. However, the need for cooperation in this area encouraged the Commission and the national competition (...)

Frédéric Buy Significant imbalance: The French Supreme Court affirms for the first time that the provisions of the former article L. 442-6 C. com. constitute mandatory rules (Expedia)

8 July 2020 334

The reader will no doubt recall the judgment of the International Chamber of the Paris Court of Appeal dated June 3, 2020, which we reported in the previous issue of this column (CA Paris, ch. com., June 3, 2020, No. 19/03758, Concurrences 3-2020, obs. F. Buy). In response to the question (...)

Marie Cartapanis, Frédéric Marty Relevant markets: The European Commission continues consultations on the definition of relevant markets

26 June 2020 448

Following the announcements made by the European Commissioner for Competition in December 2019 (see this column, volume 1-2020, pp. 87-88), the Commission has initiated a reflection on the evolution of the definition of relevant markets. These are currently defined on the basis of a Commission (...)

Frédéric Buy Sudden termination: The International Commercial Chamber of the Paris Court of Appeal rules that Article L. 442-6, I, 5° of the Commercial Code does not override mandatory provisions (Sodmilab / Waters)

3 June 2020 635

Conflict of doctrines at the Paris Court of Appeal! Chambers 5-4 and 5-5 have so far disagreed as to whether or not the provisions of the former Article L. 442-6, I, 5° C. com. which became L. 442-1, II, constituted a police law: yes for the former (CA Paris, p5 Jul. 2017, RG no. 15/19988; 9 (...)

Marie Cartapanis, Frédéric Marty Digital platforms: The European Commission launches two preliminary impact studies on the competitive and regulatory framework for electronic intermediation platforms

2 June 2020 358

The competitive treatment of digital platforms is the subject of much reflection not only in the economic literature but also in the sphere of public policy. For example, on 1 July 2020, the UK Competition and Markets Authority (CMA) proposed to the Government to implement a specific (...)

Frédéric Buy Price transparency: The Aix Court of Appeal judges that price reductions are not inapplicable for the sole reason that they have not been mentioned in the written agreement (Immomedia Communication & Exclusive Media / Imaye Graphic)

28 May 2020 174

Litigation over "written agreements" is rare enough to draw the reader’s attention to the judgment handed down by the Aix Court of Appeal on 28 May 2020. The question that was asked there was most interesting from a practical point of view: does the fact that a service provider has not (...)

Marie Cartapanis Discrimination: The French Competition Authority orders protective measures in favour of press agencies and publishers against an undertaking likely to have abused its dominant position on the French market for general search services (Google / Syndicat des éditeurs de la presse magazine, Alliance de la presse d’information générale and Agence France-Presse)

9 April 2020 340

On 9 April 2020, the Competition Authority issued a first decision granting interim measures in a new Google case which is already attracting a great deal of interest in the press, online communication services to the public and online advertising sectors. The case begins with the adoption (...)

Marie Cartapanis Rebates: The French Competition Authority accepts commitments proposed by the incumbent operator in the parcel delivery sector (La Poste)

2 April 2020 200

More than ten years after the opening of proceedings against La Poste for practices in the parcel delivery sector, and at a time when business to consumer parcel delivery is facing a massive influx of parcels due to the health crisis, the Competition Authority has published a decision in which (...)

Marie Cartapanis, Frédéric Marty Critical infrastructures: The Commissioner for Competition clarifies, in response to a parliamentary question, the implementation conditions of the essential facilities doctrine to online platforms

31 March 2020 426

The theory of critical infrastructure, which stems from the decision-making practice of the American Supreme Court with the Terminal Railroad Association decision of 1912 (United States v. Terminal Railroad Ass’n, 224 U.S. 383 (1912)), has been adopted by European case law, even though the (...)

Marie Cartapanis COVID-19: The European Competition Network issues a joint statement on the application of competition law during the Covid-19 crisis

23 March 2020 196

In the context of the health crisis, and following several publications by national competition authorities aimed at informing undertakings about the temporary relaxation of the competition rules during the Covid-19 crisis, the European Competition Network issued on 23 March 2020 a joint (...)

Frédéric Buy Sudden termination: The French Supreme Court decides that, in the event of a sudden breach of established commercial relationship, a third party cannot seek compensation for any damage on the basis of article L. 442-6 of the French Commercial Code (Back-holding, Ibis Backwarenvertriebs / Atlantique productions, Biscuiterie pâtisserie carrée and Régals de Bretagne)

18 March 2020 169

"Only the party who directly maintains an established commercial relationship with the other party may, on the basis of this text, seek the latter’s liability in the event that he has, brutally and without written notice, broken this relationship, even partially third parties may claim (...)

Marie Cartapanis Abuse of economic dependence: The French Competition Authority fines a big tech company and its wholesalers for abuse of economic dependence in the distribution of computer products and consumer electronic equipment (Apple / Tech Data / Ingram Micro)

16 March 2020 623

On 16 March 2020, after seven years of investigation, the French Competition Authority fined Apple and two wholesalers, Tech Data and Ingram Micro, a record amount of nearly €1.14 billion for practices implemented in the distribution of Apple-branded products. Text The publication of this (...)

Frédéric Buy Sudden termination: The Paris Court of Appeal decides that a third party can sue the company liable for a sudden breach of established commercial relationship when it has suffered a loss (Plaisir Selection Japan / Organisation Intra groupe des achats)

27 February 2020 295

Here is a timely ruling (Paris, 5-5, Feb. 27, 2020, AJ Contrat 2020, forthcoming, obs. F. Buy). A few months ago, the Plenary Assembly of the Court of Cassation decided to uphold its Boot shop jurisprudence (Cass. ass. plén., Oct. 6, 2006, no. 05-13255), solemnly reaffirming that "a third (...)

Marie Cartapanis Market power: The French Competition Authority publishes its contribution to the debate on competition policy and digital issues

19 February 2020 273

On 19 February 2020, two months after the publication of its Google/Gibmedia decision, the Competition Authority put online its contribution to the debate on competition policy and digital issues. The Authority’s thinking is rooted in a context of a flurry of doctrinal, decision-making and (...)

Frédéric Buy Unfair competition: The French Supreme Court rules that judges shall take into account any unfair profits made by the author of unfair commercial practices when assessing damages (Cristallerie de Montbronn / Cristal de Paris)

12 February 2020 526

It is safe to say that the Cristal de Paris judgment is one of the most important judgments that the Court of Cassation has ever handed down on the subject of unfair competition, and on compensation for economic loss more generally. This innovative decision is promised to the greatest (...)

Frédéric Buy Price transparency: The French Supreme Court decides, for the first time, that late fees shall not apply to non-professionals (FPBI, Solidarité et jalons pour le travail / Portakabin)

5 February 2020 136

Late payments are, as we know, a real scourge. Because the ordinary law, which only grants interest at the legal rate (art. 1231-6, Civil Code), "has never discouraged bad payers" (D. Mainguy, note JCP E 2009, 1543), the Commercial Code has long provided for a derogatory rule: penalties for (...)

Marie Cartapanis Essential facilities: The French Competition Authority rejects for lack of convincing evidence the request for provisional measures related to an alleged refusal to access to an essential facility (OATA / Orange)

23 January 2020 237

On 23 January 2020, the Competition Authority rejected the request for interim measures ancillary to a referral on the merits of the case by OATA, the Association of Alternative Telecommunications Operators. The association, which represents 40 regional telecom operators, denounced an abuse of (...)

Marie Cartapanis Fines: The French Competition Authority imposes a EUR 150 Million fine to an undertaking for an abuse of dominant position on the online search advertising market (Google)

19 December 2019 655

On 19 December 2019, the Competition Authority imposed a fine of €150 million on Google for abusing its dominant position in the market for search-related online advertising. This decision is part of a general climate of mistrust towards the digital giant. In addition to the sanctions (...)

Marie Cartapanis Market test: The French Competition Authority submits to market test commitments offered in the sector of controllers for games consoles (Sony)

22 November 2019 235

The Sony case is a further illustration of the success of the engagement process in the digital economy and, more specifically, in the sector of video games and control accessories compatible with the PlayStation 4 console. The investigation begins with a referral, filed on October 20, 2016, (...)

Marie Cartapanis Market power: The French Competition Authority and the Bundeskartellamt publish a joint study on algorithms and competition

6 November 2019 325

Following the study on Big Data, the Competition Authority and the Bundeskartellamt published a joint study on algorithms and their implications for competition law enforcement on 6 November. The 88-page study is accompanied by a summary and a press release. It presents algorithms both as key (...)

Frédéric Buy Sudden break: The French Supreme Court considers that a group of companies cannot be party to an established commercial relationship (Sabet Persepolis / Galeries Lafayette)

16 October 2019 215

How does the law on abrupt breakups deal with corporate groups? The ruling handed down by the Court of Cassation on 16 October 2019 (CCC 2019, no. 199, obs. N. Mathey) provides an opportunity to take stock of a question that is certainly classic, but always delicate (see not. F. Buy, L’article (...)

Frédéric Buy Sudden break: The French Supreme Court decides, for the first time, that Article L. 442-6, I, 5° of the French Commercial Code does not apply between an agent and a principal (IDF Management / Gifi)

2 October 2019 294

On 2 October 2019, the Court of Cassation handed down an important and noteworthy ruling (D. actu 17 October 2019, obs. X. Delpech; CCC 2019, No. 198, obs. N. Mathey; AJ Contrat 2019, p. 483, note N. Dissaux; adde F. Buy, De quelques conflits de lois internes en droit des affaires, D. 2019, p. (...)

Frédéric Buy Individual penalties: The European Court of Human Rights rules that a merging company can be sentenced to a civil fine while the unfair commercial practice has been committed by the absorbed company (Carrefour / France)

1 October 2019 250

Question: Can an acquiring company be ordered to pay a civil fine for an unfair commercial practice (in this case, the obtaining of manifestly disproportionate advantages by a large distributor) previously committed by the company it has absorbed? Yes, and three times yes! Yes, firstly, (...)

Frédéric Buy Sudden break: The French Supreme Court prohibits lower judges, in accordance with the principle that the judge has an obligation not to distort the writing submitted to him, from deciding on the basis of a sudden breach of commercial relationships whereas the purpose of the request was based on contractual liability (IGA)

18 September 2019 151

The law of unfair commercial practices is now leading practitioners and academics to "revisit the relationship between ordinary law and special law" (J. Klein, Les rapports entre le C. com. et le C. civ, Concurrences No. 3-2019, art. 90980.). Especially in the case of abrupt break-ups, the (...)

Frédéric Buy Unfair competition: The Paris Court of Appeal recalls that a legal entity not subject to a code of ethics’ rules can commit an act of unfair competition in case of breach distorting competition on the market (Mutualité française d’Alsace / Syndicat des chirurgiens-dentistes du Bas-Rhin)

29 August 2019 404

Unfair competition is one of those notions that are sometimes thought, with little naivety, to be easily tamed. On the one hand, unfair competition does not, at least officially, belong to the family of unfair commercial practices as defined by the recent reform of Title IV of Book IV C. com (...)

Anne Perrot, Roger Bout, Pierre Picard Competition in the insurance sector (Nasse Seminar - Paris, 3rd April 2006)

September 2006 76

During the Seminar organized the 3rd of April of 2006, Pierre Picard and Roger Bout talked about competition in the insurance sector. The seminar was animed by Anne Perrot, vice-president of the Competition Authority. Created at the end of the 1980s within the Forecasting Department, the (...)

Frédéric Buy Payment terms: The Marseille Administrative Court of Appeal inaugurates the administrative jurisdictional litigation of unfair commercial practices (Airbus Helicopters)

25 February 2019 291

The time has come for administrative judicial litigation in commercial relations. After the introduction, by the Hamon law of 17 March 2014, of the administrative fine penalty to sanction the violation of a whole series of provisions of Title IV of Book IV C. com. the administrative judge (...)

Frédéric Buy Business partnership: The French Supreme Court rules that Article L. 442-6 of the French Commercial Code does not apply to the relationship between a lawyer and his law firm (M. E. / Cabinet S.)

20 February 2019 185

By the time the reader reads these lines, the judgment under commentary will perhaps no longer be more than an illustration of the Byzantinisms on which article L. 442-6 C. com. has been based for too long. In this case, judges had rejected a lawyer’s claim for damages, directed against the (...)

Frédéric Buy Non-competition clause: The Paris Court of Appeal considers, for the purpose of applying a non-competition clause, that using a common name does not imply the creation of a distribution network (International Esthétique / Joël M.)

23 January 2019 193

Here is a most common contractual clause, housed in a franchise agreement: the distributor is prohibited from "creating a competing network[ in the same field] in all the cities where the franchised institutes are located, for one year from the termination of this contract". The clause is a (...)

Frédéric Buy Reform: The French Government adopts an ordinance for raising the resale below cost threshold and limiting promotions for food products (Ord. n. 2018-1128)

12 December 2018 241

Recasting of the law of commercial relations by means of ordinances, Act I! In accordance with the authority given to it by the "EGalim" Act (Article 15), and in record time, the Government therefore adopted a first ordinance on raising the threshold for resale at a loss and regulating (...)

Frédéric Buy Reform: The French Parliament adopts the laws on unfair commercial practices (Law n. 2018-938)

30 October 2018 283

That’s it, the big works are underway! Article 17 of the "EGalim" law has, in fact, authorized the Government to take by ordinance, within a period of six months from 1 November 2018, any measure falling within the scope of the law necessary to amend Title IV of Book IV C. com . At the time of (...)

Frédéric Buy Written ruling procedure: The French Parliament adopts the Law n° 2018-727 introducing the written ruling procedure to terms of payment issue (Law n. 2018-727)

10 August 2018 150

Created by Act No. 2018-727 of 10 August 2018 for a State at the service of a trust company (Article 21), the new Article L. 441-6-2 C. com. will undoubtedly be of interest to professionals. Indeed, the technique of rescripting is appearing in a particularly sensitive field: that of payment (...)

Claire Mongouachon, Lionel Zevounou The role of the European Parliament in the European Union’s institutional competition structure

September 2018 517

This paper analyzes the marginal role allotted to the European Parliament in the creation and enforcement of competition rules from a legal and political point of view. It describes the process of intensification of the parliamentary control over the European Commission. It shows how the (...)

Perrine Perez Innovation et droit de la concurrence, Marie CARTAPANIS

September 2018 965

Perrine Perez Les accords de report d’entrée: Contribution à l’étude de la relation du droit de la concurrence et du droit des brevets, Walid CHAIEHLOUDJ

September 2018 921

Frédéric Buy Significant imbalance: The Paris Court of Appeal establishes the conditions under which the single convention may be modified (Minister of Economy / Système U)

16 May 2018 255

Is it possible to renegotiate during the year the single agreement concluded pursuant to Article L. 441-7 C. com, and if so, under what conditions? The answer given by the Paris Court of Appeal in this decision handed down on 16 May 2018 is important (AJ Contrat 2018, p. 385, obs. L.-M. (...)

Frédéric Buy Commercial lease: The French Supreme Court considers that Article L. 442-6 of the French Commercial Code is only applicable to production, distribution or services activities (Au Marahja)

15 February 2018 223

The judgment handed down on 15 February 2018 by the Third Civil Chamber of the Court of Cassation (AJ Contrat 2018, p. 143, obs. K. Magnier-Merran) can be placed in the family of "grands arrêts du petit droit" (F. Buy, Les grands arrêts du petit droit, D. 2017, p. 1481). It is one of a growing (...)

Frédéric Buy Submission: The French Supreme Court considers, under article L. 442-6 of the French Commercial Code, that a liability clause cannot be deemed unwritten without submission (Delta Security Solutions)

14 February 2018 236

The movement to block the application of Article L. 442-6 C. com. is still in progress. The reported judgment is perhaps not the most spectacular illustration of this, but it has the merit of reminding us that the law of commercial relations is not a "trick" that could be conveniently wielded (...)

Frédéric Buy Economic entity: The French Supreme Court rules that the concept of economic entity is specific to the antitrust law and cannot be applied to the common civil liability law (Optical Center / Frères Lissac, Lissac enseigne, Gadol et Audioptic Trade Services)

14 February 2018 237

The judgment is not published in the bulletin, which is unfortunate (see CCC 2018, comm. 87, obs. M. Malaurie-Vignal). For the Court of Cassation is making an important decision here, which defuses an attempt to import so-called "economic" reasoning in civil law. Certain practices observed in (...)

David Bosco Droit des affaires de l’Union européenne, Jean-Bernard BLAISE and Anne-Sophie CHONÉ-GRIMALDI

February 2018 284

Frédéric Buy Draft law: The French Parliament plans to authorise the French Government to reform the laws on unfair commercial practices by ordinance (Draft law n. 627)

1 February 2018 167

The bill for balanced trade relations in the agricultural and food sector does not merely lay the foundations for a reform of agricultural trade relations (see our commentary above). It also, and perhaps above all, in its articles 9 and 10, announces the future reform of Title IV of Book IV of (...)

Frédéric Buy Draft law: The French Government proposes a bill on agricultural trade relations (Draft law n. 627)

1 February 2018 372

The law on the sale of agricultural products, as it has been known since the law on the modernisation of agriculture and fisheries (LMAP) of 27 July 2010 (for a general presentation, F. Buy, M. Lamoureux and J.-C. Roda, Droit de la distribution, LGDJ, 2017, n° 393 et seq.; and for a detailed (...)

Frédéric Buy Prejudice : The Court of Appeal of Paris shall publish on its website a methodological sheet on compensation for damages

17 January 2018 418

With a simple "pedagogical" dimension, but with a very valuable content, the fact sheet published on the Paris Court of Appeal’s website represents a sort of instruction manual for assessing the damage resulting from a sudden termination of an established commercial relationship. In short, (...)

Frédéric Buy Bank loans: The French Supreme Court decides that the provisions of article L. 442-6 of the Commercial Code do not apply to termination of bank loans (AMG Compagnie / CIC)

25 October 2017 188

The commented judgment is important (obs. C. Mouly-Guillemaud, Lettre distr. nov. 2017; note N. Dissaux, JCP E 2017, 1665; chron. F. Buy, RLDC Jan. 2018, forthcoming). It constitutes a new illustration of the current "ebb" of article L. 442-6 C. com (Flux et reflux de la rupture brutale d’une (...)

Frédéric Buy Significant imbalance: The French Supreme Court considers that the provisions of article L. 442-6 of the Commercial Code do not apply to the relationship between a company and its partners (Sport / Intersport)

18 October 2017 199

We reported and approved in these columns, a few months ago, the excellent decision of the Court of Appeal of Paris of February 3, 2016 which had refused, in substance, to apply the rules on significant imbalance and abrupt rupture to the relations maintained by a cooperative society of retail (...)

Frédéric Buy Judicial specialisation: The French Supreme Court points out that disputes relating to the application of the article L. 441-7 of the Commercial Code do not fall within the jurisdiction of specialized courts (Sofexi / Profima)

20 September 2017 139

The solution set out in the Court of Cassation’s ruling of 20 September 2017 is self-evident. Nevertheless, it shows that the rule of jurisdictional specialisation laid down in Article L. 442-6, III C. com. sometimes gives rise to improbable disputes. In the present case, in declaring (...)

Frédéric Buy Proper notice: The French Supreme Court overrules the decision of the Paris Court of Appeal according to which successful conversion had to be taken into account to appreciate the proper notice of termination (Cargo Lines c/ Carotrans)

5 July 2017 701

We had recently reported in these columns an original decision of the Paris Court of Appeal (CA Paris, 5-5, Jan. 28, 2016, RG n° 14/13036, Concurrences No. 2-2016, p. 131, obs. F. Buy JCP G 2016, 288, note C. Grimaldi; RTD civ. 2016, 361, obs. H. Barbier) which had entered into resistance (...)

Frédéric Buy French law on the modernisation of the economy: The French Supreme Court considers that French law on the modernisation of the economy is not retroactive and recalls the need to specify legal grounds (Maisoning éco habitat c/ Castorama France)

5 July 2017 703

The ruling of the Court of Cassation handed down on 5 July 2017 will be of particular interest to practitioners. Its lesson could be that, if legal rigor is not in order with regard to "the fundamentals", the law of restrictive practices, however attractive it may be, could well be a mirror (...)

Frédéric Buy Parity clause: The Paris Court of Appeal sanctions, in accordance with Article L. 442-6 of the French Commercial Code, parity clauses imposed to hoteliers and recognises jurisdiction of French Courts (Expedia)

21 June 2017 485

The practices of hotel reservation platforms have not gone unnoticed for some time now. Lawyers have discovered the so-called "parity" clauses that these platforms impose in their contracts with hoteliers: the "parity of rates" clauses, which ensure that the best rates are automatically (...)

Frédéric Buy Cancellation: The French Supreme Court considers that significant imbalance cannot be subject to a cancellation under the French Commercial Code (Nord Toitures / SCT)

24 May 2017 389

Here is an unpublished decision of the Court of Cassation which, out of the blue, seems to have settled, for the first time, one of the major questions relating to the regime of article L. 442-6, I, 2° C. com. In the case in point, a company had signed a contract with a telephone operator for (...)

Frédéric Buy Minister legal action: The French Supreme Court approves the condemnation of a specialised distributor for significant imbalance and refuses to criticise the French Minister for Economy which highly publicised its legal action (Darty)

26 April 2017 228

After the signs of the large food distribution, the signs of the specialized distribution are, in their turn, under the spotlight of the Court of Cassation. The scenario is well known, with an action initially launched by the Minister who considered that two clauses inserted in the contracts (...)

Frédéric Buy Member of a cooperative company: The French Supreme Court considers that the exclusion of a member of a cooperative company is not subject to the application of the article L. 442-6, I, 5° of the Commercial code (Coopérative des transporteurs en benne / SPS Roland X)

8 February 2017 183

Among the questions raised by Article L. 442-6, I, 5° C. com., that of the delimitation of its field of application is certainly one of the most delicate (Obs. F. Buy, L’article L. 442-6, I, 5° du Code de commerce, Lamy droit du contrat, 2016, n° 2495 et seq. ; adde notre article Rupture (...)

Frédéric Buy Judicial control of prices: The French Supreme Court considers that prices can be controlled according to the article L. 442-6, I,5° of the Commercial code (Le Galec)

25 January 2017 328

The decision of the Commercial Chamber of the Court of Cassation of 25 January 2017 (Obs. F. Buy, D. 2017, p. 481; obs. M. Béhar-Touchais, JCP G 2017; obs. S. Pech-Le Gac, JCP E 2017, 1135), presided over for the occasion by First President Louvel, is probably the most important decision that (...)

Frédéric Buy Reform : The French Parliament adopts, on December 9th 2016, the law n° 2016-1691 on transparency, the fight against corruption and modernization of economic life (Loi Sapin 2)

9 December 2016 700

The law on transparency and practices restricting competition has just been amended by the imposing law n° 2016-1691 of 9 December 2016 on transparency, the fight against corruption and the modernisation of economic life, known as "Sapin 2". One hardly dares, so well known is it, to sing the (...)

David Bosco, Martine Behar-Touchais, Thierry Pénard Online distribution (Competition law enforcement in the digital sector - Nanterre, 17 November 2016)

May 2017 971

Case 2 illustrates the practices of an electronics manufacturer who is organizing his distribution network and is interessed in e-commerce to sell his products; The case was studied in the scope of the EU, French, German, US and Japanese competition laws. An economist and the legal director of (...)

Frédéric Buy Selective distribution : The Paris Court of Appeal rules that a company may refuse to examine an application of another company for selective distribution membership, without providing a justification (Élysées Shopping / Rolex France)

19 October 2016 381

Can a candidate for integration into a selective distribution network challenge the refusal of approval on the basis of discrimination? This is the beautiful question posed by the decision of the Paris Court of Appeal handed down on 19 October 2016 (see Vogel & Vogel blog: (...)

Frédéric Buy Submission : The French Supreme Court approves the judgment of the Paris Court of Appeal that ruled against a large retailer for submitting or having attempted to submit its suppliers to significant imbalance (Carrefour)

4 October 2016 630

This is the latest episode in the fight, for the moment victorious, led by the Minister of the Economy against the players in the mass distribution sector. In a ruling handed down on 4 October 2016 (CCC 2016, comm. 253, obs. N. Mathey; blog Vogel & Vogel), the Commercial Chamber of the (...)

Frédéric Buy Abrupt concept: The French Supreme Court rules on the conflict between community and national law on the question of the notice period to be granted in case of breach of established commercial relationships and on the compensation for a sudden breach (US Import Export / Sniw)

6 September 2016 270

Strangely, the central condition of the offence of brutal termination of an established commercial relationship was, until now, only imperfectly understood (see, however, the enlightening study by C. Mouly-Guillemaud, "Répercussion de la crise économique, perte de rentabilité d’une relation ou (...)

David Bosco Droit de la concurrence – Aspects théoriques et appliqués, Karounga DIAWARA

September 2016 738

Karounga Diawara, a professor at Laval University (Quebec City), is well known to readers of this journal for his excellent columns on Canadian law in the European and Foreign Jurisprudence section. In December 2015, the author published a fascinating book entitled Droit de la concurrence - (...)

Frédéric Buy Abrupt termination: The Court of Justice of the European Union considers that an action for damages based on an abrupt termination of established commercial relationship is not always a matter relating to tort or delict (Granarolo / Ambrosi Emmi France)

14 July 2016 284

Litigants are called upon to put their work back on the job! For the application of the Brussels I European Regulation, the Court of Justice of the European Union has just ruled, in a break with the solution that was up to now defended by the Court of Cassation, that "Article 5(3) of Council (...)

Frédéric Buy Sudden termination: The French Supreme Court confirms the liability of a manufacturer for sudden termination when its subsidiaries and its franchisees when they do not have a decision-making independence (Blue Oceans Venture / Groupe Planet Sushi)

5 July 2016 183

Groupe Planet Sushi, which specialises in the catering and delivery of Japanese cuisine, which it carries on, notably through its subsidiaries and its network of franchisees, is assigned by one of its service providers, Blue Oceans Venture, on the basis of an abrupt termination of an (...)

Frédéric Buy Significance imbalance: The Paris Court of Appeal considers that the provisions of article L. 442-6 of the commercial code do not apply to the relationship between a company and its partners (Distribution Labege / Intersport)

3 February 2016 239

It is well known that Article L. 442-6 of the French Commercial Code, which was originally created to govern distribution relationships, has long since fallen out of bed. Can it now be applied to the relationship between a company and its own partners? This is the very interesting question (...)

Alain Gauvin, Christophe Grison, Frédéric Buy, Jean-Christophe Roda, Jean-Louis Fourgoux, Julie Zoughi, Leyla Djavadi French distribution law following adoption of Macron law

February 2016 1284

With this new Trends issue related to the last evolutions of the French distribution law, the review Concurrences carries on its work on the most important competition issues raised by the Macron law adopted on August 6th, 2015. From small adjustments in transparency law to genuine (...)

Frédéric Buy Sudden termination: The Paris Court of Appeal considers that successful conversion has to be taken in account to appreciate the proper notice of termination (Cargo Lines / Carotrans international)

28 January 2016 230

Practitioners familiar with the litigation of abrupt terminations will not fail to appreciate the originality of this decision of the Paris Court of Appeal "discovered" by our colleague Cyril Grimaldi (JCP G 2016, 288), which runs counter to the current case law of the Court of Cassation on a (...)

Frédéric Buy Notion of commercial relationship: The French Supreme Court approves the decision of the Court of appeal of Angers which ruled that article L. 442-6,I,5° of Commercial Code is not applicable to the relationship between a lawyer and his/her client (X / Banque populaire atlantique)

24 November 2015 251

Although foreseeable (the judgment is not published in the Bulletin), the solution adopted in this case by the Commercial Chamber of the Court of Cassation will certainly attract the attention of legal professionals. Indeed, the High Court decided, for the first time to our knowledge, that the (...)

Frédéric Buy Sudden termination: The French Supreme Court overrules the decision of the Court of Appeal of Paris, which in order to assess the consequences of a sudden termination, has taken into account all the relationships built up between the victim and several subsidiaries of a group, whithout noting that the latter had colluded with each other (Toyota / Fonderie Bouhyer)

6 October 2015 251

It is customary to say, perhaps a little quickly, that the concept of the corporate group, which is more economic than legal, is difficult to grasp properly in law. But, precisely because it does not run on classical civil law concepts, is the law of abrupt breaks in commercial relations not (...)

Frédéric Buy Significant imbalance: The French Supreme Court is gradually building up strict legal precedents concerning significant imbalance in contracts in the retail sector (EMC distribution)

29 September 2015 398

After a few years of waiting, the decisions of the Court of Cassation on the "significant imbalance" are beginning to flourish. The reported ruling, dated 29 September 2015, confirms and consolidates, in the form of a lengthy rejection decision, what three other noteworthy rulings handed down (...)

Anthony Dawes, Ben Holles De Peyer, David Bosco, Francisco Enrique González-Díaz, Jean-Philippe Christienne, Nicolas Von Lingen, Thierry De Bovis, Thomas Perroud The EU judge and the unlimited jurisdiction over the Commission’s decisions

December 2014 4371

The EU judicial review of the Commission’s decisions generates an abundant case law. This Trends aims to clarify the major difficulties that arise from the concept of "unlimited jurisdiction" and that manifest themselves both at the level of the control standard to which the Commission’s (...)

Catherine Piché, David Bosco, Mick Smith, Pierre Servan-Schreiber, Rafael P. Amaro, Till Schreiber Third-party private litigation funding

September 2014 1382

16th April 2014, The European Parliament adopted the Proposal for a Directive of 11th June 2013 on certain rules governing actions for damages for infringements of the competition law provisions (one of the private enforcement components). The text bodes for the long-awaited developement of (...)

David Bosco, Ian Simmons, James Killick, Kenneth O’Rourke, Ombline Ancelin, Pascal Berghe, Pierre Régibeau, Stephen McIntyre Pay-for-delay settlements in the pharmaceutical sector

May 2014 1839

The authors of this Trends focus on several decisions delivered in the United States and in Europe, related to pay-for-delay settlements in the pharmaceutical sector. This type of settlements has spread in the past few years, and aim to postpone the arrival of generics on the market, with (...)

Alain Gauvin, David Bosco Implementation difficulties of Regulation N°330/2010: General conditions of exemption (Caen, 4 October 2013)

February 2014 815

The second roundtable of the conference held in Caen, the 4th October 2013 was dedicated to the implementation difficulties of Regulation n° 330/2010. David Bosco and Alain Gauvin study the general conditions of the exemption. For Mr Gauvin, the aim is to review post-contract provisions, (...)

APDC, Daniel K. Oakes, David Bosco, Fabien Zivy, Jacques Steenbergen, John DeQ. Briggs Zivy’s report : Diverse perspectives on the cross-borders mergers

February 2014 1429

In the Eurotunnel case, the analysis conducted in parallel by the French Competition Authority and the Competition Commission on the merger between Eurotunnel and SeaFrance’s assets, brought to divergent outcomes. This case gives the opportunity to discuss about the European approach to (...)

Assimakis Komninos, David Bosco, Frédéric Marty, Hans Zenger, Strati Sakellariou-Witt The "as efficient competitor test": A new era?

September 2013 3089

The "reasonably-efficient operator test" is a general test used for pricing strategies of dominant firms by the European Commission. Contributions of this "Trends" present this test in various areas of competition law. The importance of this test has recently been underlined by the Court of (...)

David Bosco, David J. Went, Elsa Sependa, Peter Alexiadis, Robert Saint-Esteben, Stephen Kinsella OBE, Virginie Beaumeunier Structural remedies: A unique antitrust tool

May 2013 2234

The French Competition Authority has been given a new power by the legislator: it can order structural injunctions when the price conditions charged by a dominant undertaking are unusually high on the French overseas territories. Clearly, this legal instrument is sui generis in France. It is (...)

Andreas Bardong, Céline Gauer, David Bosco, Etienne Pfister, Katrin Schallenberg, Oliver Bretz, Simon Genevaz, Tad Lipsky Market tests in antitrust and merger control proceedings

February 2013 2229

Nowadays, commitments decisions of the competition authorities are, most of the time, preceded by a consultation of third parties. These "market tests" have become a central step of the antitrust procedure and merger control. The authors of this Tendances present their experience in using this (...)

Jean-Yves Chérot State aid modernisation: The European Commission is committed to the adaptation of the State aid supervision

3 September 2012 187

Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on Modernising EU State aid policy, COM(2012) 209 final of 8 May 2012 The Context Seven years after the announcement of the State Aid Action (...)

Anne Krenzer, David Bosco, Pablo Amador Sanchez, Philippe Rincazaux How to deal with a leniency request ?

September 2012 933

The French leniency program has been in effect for over a decade, as in the Netherlands. Yet, some issues concerning the application of these original procedures still remain. What is, in practice, their role in the fight against secret cartels? Which requirements of cooperation burden on (...)

Audrey Oh, David Bosco, Fabrice Siiriainen, Geoffrey Manne, Jonathan M. Jacobson, Kimberley A. Piro, Mark Powell, William Rinehart e-Books and the boundaries of antitrust

September 2012 1269

The e-book market is quite remarkable. The distribution’s economic models of this singular property are original and very different from one system to another. The U.S. and European litigations around the Apple’s practices and publishers, as well that the French law on the e-book price’s (...)

Jean-Yves Chérot Private investor test: The Court of Justice rules that the General Court did not err in law in finding that the private investor test may be applicable even where fiscal means have been employed (EDF)

5 June 2012 479

CJEU, 5 June 2012, Commission v. EDF, Case C-124/10 P The data ---- The Commission had brought an appeal before the Court of Justice against the judgment of 5 December 2009 in which the Court of First Instance annulled Articles 3 and 4 of the Commission Decision of 16 December 2003 on State (...)

Jean-Yves Chérot Preussen elektra case law: The Council of State makes a preliminary reference to the CJEU with respect to the condition of State resources relating to a compensation scheme financing renewable power generation (Association Vent de colère)

15 May 2012 529

EC, 15 May 2012, Association Vent de colère, n° 324852 The Conseil d’État has decided to refer a preliminary question to the Court of Justice of the European Union on the interpretation of the concepts of State aid and State resources in relation to the mechanism of the purchase obligation (...)

Jean-Yves Chérot Compensation of service of general economic interest: The European Commission renders the first application of the Alumnia framework for State aid in the form of public service compensation (Post Office)

28 March 2012 210

Eur. comm. dec. of 28 March 2012, Post Office Limited - Offsetting of net costs incurred to ensure a commercially uneconomic network aff. SA.33054 (2012N) First and interesting application of the framework applicable to State aid in the form of public service compensation resulting from the (...)

Jean-Yves Chérot Distortion of competition – Imputability: The General Court annuls a Commission decision as far as this decision undermines the exemption from excise duty authorised by the Council and undermines the presumption of legality attaching to European Union measures (Ireland a.o./Commission)

21 March 2012 251

Trib. EU, 21 March 2012, Ireland and others v Commission, cases T-50/06 RENV, T-56/06 RENV, T-60/06 RENV, T-62/06 RENV and T-69/06 RENV. Facts and procedure ---- The European Commission has opened State aid proceedings against Ireland, Italy and France for exemptions from excise duties on (...)

Jean-Yves Chérot Recovery: The Court of Justice rules against Greece for failure to implement a recovery decision (Greece)

1 March 2012 172

CJEU, 1 March 2012, Commission v. Greece, case C-354/10 The Court of Justice is asked to declare that, by failing to adopt, within the prescribed period, all the measures necessary for the recovery of the aid found by the Commission to be unlawful and incompatible with the common market in (...)

Claire Mongouachon Public procurement – Bid from a public body: The Bordeaux administrative Court of Appeal reminds the conditions under which public bodies may bid for a public contract (Centre hospitalier de Bigorre et al.)

1 March 2012 310

CAA Bordeaux, March 1, 2012, Centre hospitalier de Bigorre, Lannemezan Hospitals and Centre hospitalier de Lourdes, n° 10BX01569 The ruling handed down by the Bordeaux Court of Appeal illustrates the importance of competition rules in regulating access by public entities to public (...)

Jean-Yves Chérot Recovery: The Court of Justice issues a judgment that illustrate a refusal to comply, for the wrong reasons, with a decision ordering the recovery of aid illegally granted (France)

16 February 2012 272

CJEU, 20 October 2010, Commission v. France, Case C-549/09 This case is a further illustration of the prevarication of a Member State in the performance of its obligations to recover incompatible and unlawfully paid aid as a defence which a Member State in question knows full well is not (...)

Jean-Yves Chérot Recovery: The Court of Justice imposes a penalty the amount of which changes over time in proportion to the progress of the implementation of the Commission’s decision (Italy)

16 February 2012 334

CJEU, 17 November 2011, Commission v. Italy, Case C-496/09 An action for failure to fulfil obligations The case before the Court shows once again how difficult it is for States to recover incompatible and unlawfully granted aid when it comes to implementing a Commission decision on a general (...)

Jean-Yves Chérot Selectivity – Direct taxation: The Court of Justice, grand chamber, gives the Commission the means to better fight against unfair tax competition on the basis of State aid rules (Commission and Spain/Government of Gibraltar and United Kingdom)

16 February 2012 480

CJEU, 15 November 2011, Commission and Spain v. Government of Gibraltar and United Kingdom, cases C-106/09 P and C-107/09 P. The issue of selectivity of State aid in the context of the fight against harmful tax competition ---- This is an important judgment on the concept of selectivity of (...)

Jean-Yves Chérot Recovery: The Court of Justice examines the particular case of the extent of the obligation to justify a recovery order in a decision on a general aid scheme (A2A/Commission ; ACEA/Commission)

16 February 2012 274

CJEU, 21 December 2011, A2A v Commission, Case C-318/09 P CJEU, 21 December 2011, ACEA v Commission, Case C-319/09 P CJEU, 21 December 2011, A2A v Commission, Case C-320/09 P Appeals against the judgments of the Court of First Instance of 11 June 2009 (obs. J.-Y. C. Concurrences No. (...)

Jean-Yves Chérot Agriculture sector: The General Court states the interpretation of the guidelines for State aid in the agriculture sector (Eridania Sadam/Commission)

16 February 2012 282

UECG, 20 October 2011, Eridania Sadam v. Commission, Case T-579/08 Interpretation of the Guidelines for State aid in the agriculture sector ---- This case enables the Court of First Instance to clarify the meaning of certain provisions of the Guidelines for State aid in the agriculture (...)

Jean-Yves Chérot Contribution to the public electricity service: The Council of State states that the contribution to the public electricity service is not an integral part of a State aid (Stop Hôtel Villeneuve d’Ascq)

16 February 2012 417

EC, 9 November 2011, Stop Hôtel Villeneuve d’Ascq, n° 323273 Final consumers of electricity installed on the national territory participate, as a contribution to the national public electricity service, in the financing of the additional production costs borne by electricity operators in (...)

Jean-Yves Chérot Altmark case law: The Marseille Administrative Court of Appeal rules that a safeguard clause reserving the right to grant the delegate of public services additional funding, other than that required to carry out the public services obligations, to an amount that is not determined and whose calculation parameters were not defined, constitutes a State aid (Corsica Ferries)

16 February 2012 572

CAA Marseille, 7 November 2011, Corsica Ferries, n° 08MA01604 Corsica Ferries, a competitor of SNCM and CNM for the transport of passengers between Corsica and the mainland, asked the administrative court to annul the maritime public service delegation agreement for which SNCM and CNM were (...)

Jean-Yves Chérot Restructuring aid: The General Court holds that the European Commission has committed manifest errors in the assessment of the compensatory measures concerning the restructuring of a firm in difficulty and in the application of the Deggendorf case law (Electrolux et Whirlpool/Commission)

14 February 2012 254

Trib. EU, 14 February 2012, Electrolux and Whirlpool v Commission, Joined Cases T-115/09 and T-116/09 The Court of First Instance annuls for manifest errors of assessment the decision by which the Commission declared compatible with the internal market the aid which the French State planned (...)

Alain Mouzon, Christophe Lemaire, David Bosco, Laurence Idot, Pascal Wilhelm, Patrick de Bonnières, Thierry Dahan The breach of commitments in competition proceedings

February 2012 2620

This set of articles explores the case of breach of commitments in competition proceedings. Recent cases, in France and abroad, have highlited issues that commitments monitoring may cause. Thierry Dahan and Christophe Lemaire express here the lawyers general point of view in antitrust law, (...)

Jean-Yves Chérot SGEI: The European Commission approves a State aid to the French incumbent postal operator to finance part of the cost of the public services of delivering press items to citizens and of presence in remote areas (La Poste)

25 January 2012 233

Eur. Comm., dec. C(2012) 152 final, 25 January 2012, public service compensation measures for La Poste - France, case SA.34027 In this interesting decision, the Commission decides not to initiate the formal investigation procedure and to declare compatible with the internal market on the (...)

Jean-Yves Chérot Recovery: The Council of State closes the procedure opened in the administrative jurisdiction (CELF)

30 December 2011 243

CE, 30 December 2011, CELF, No. 274923 On 30 December 2011, the Conseil d’État delivered a judgment which puts an end to the litigation initiated before the administrative court by the appeal of the Société Internationale de Diffusion et d’Édition (SIDE) lodged in 1995 before the (...)

Jean-Yves Chérot Aid to airports and air transport companies: The European Commission invites to submit comments pursuant to Article 108(2) TFEU (Marseille-Provence airport)

15 November 2011 196

Eur. Comm. 13 July 2011, decision to initiate the procedure laid down in Article 108(2), State aid for the Marseille-Provence airport and the airlines using the airport, case SA .22932, OJ C334, 15 November 2011, p. 8. It should be noted that the Commission has taken an interesting decision (...)

Claire Mongouachon Ordoliberalism : Historical context and dogmatic content

December 2011 1871

Ordoliberalism is known in competition law for having influenced the implementation and interpretation of the European competition regulation. At a time when the ordoliberal model is being questioned, regarded as out-of-date, in favor of a “more economic approach”, it appears necessary to look (...)

Andreas Bardong, Bernard van de Walle de Ghelcke, David Bosco, David Spector, Jacques-Philippe Gunther, Peter Freeman, Peter Kalbfleisch Merger control and minority shareholdings : Time for a change ?

September 2011 3627

Ce Tendances revient sur le débat qu’a ravivé l’affaire Aer Lingus/Ryanair autour du traitement des participations minoritaires dans le contrôle des concentrations. La difficulté principale tient dans le point de savoir si, et dans quelle mesure, le droit des concentrations doit s’appliquer (...)

Jean-Yves Chérot Loan: The General Court rules that the margins to be applied to set the reference of the interests exigible by undertakings depend on the rating of the undertaking set by the 2008 Commision’s notice (Région Nord-Pas-de-Calais)

12 May 2011 515

Trib. UE, 12 May 2011, Région Nord-Pas-de-Calais and Others v Commission, Joined Cases T-267/08 and T-279/08 The decision of the Court of First Instance of 12 May 2011, Région Nord-Pas-de-Calais and Communauté d’agglomération du Douaisis v. Commission (Cases T-267/08 and T-279/08) is (...)

David Bosco, Irène Luc, Jean-Christophe Roda, Pascal Cardonnel, Philippe Rincazaux Effect on trade between Member States and anticompetitive practices: A current issue

May 2011 4951

The papers gathered in this section provide various points of views on the notion of effect on commerce between member States in EU law, with some US point of view. Professor David Bosco in a brief introduction focuses on the evolution of the notion. According to Irene Luc, Chief legal officer (...)

Jean-Yves Chérot Recovery: The Court of Justice rules that apprehension of internal difficulties in the course of implementing a decision on State aid cannot justify a failure by a Member State to comply with its obligations under Community law (Poland)

14 April 2011 471

CJEU, 14 April 2011, Commission v. Poland, Case C-331/09 The argumentation in cases brought before the Court on State failure to fulfil its obligations is extremely constrained. The defending State cannot invoke the possible unlawfulness of a Union act and here of the Commission’s decision. (...)

Jean-Yves Chérot Economic activity – Construction of airport infrastructure: The General Court rules that regional airport operators have to subsidize by their own resources the costs of the infrastructures which are the basis of their economic activity (Mitteldeutsche Flughafen, Flughafen Leipzig-Halle)

24 March 2011 5972

Trib. UE, 24 March 2011, Freistaat Sachsen and Land Sachsen-Anhalt v Commission, Case T-443/08, Mitteldeutsche Flughafen and Flughafen Leipzig-Halle v Commission, Case T-455/08 The question of financing airport infrastructure brought before the Court of Justice for the first time The question (...)

Jean-Yves Chérot Altmark package: The European Commission proposes new steps toward a reform of the Altmark package

23 March 2011 1771

Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, "Reform of the EU State Aid Rules on Services of General Economic Interest", COM(2011) 146 final, 23 March 2011 There is renewed interest in (...)

Jean-Yves Chérot Altmark case law: The Council of State rules that the public service compensation granted to hospitals does not constitute a State aid (Syndicat FHP-MCO)

16 February 2011 1048

EC, 16 February 2011, FHP-MCO Union, No. 339029 The main source of financing for the hospital sector in France is made up of health insurance credits calculated, on the basis of the principle of activity-based pricing, from "tariffs" for hospitalisation services set each year by the (...)

David Bosco The French judicial specialization in competition law

February 2011 1750

The French legislator has specialized in 2005 and in 2009 the judicial disputes in antitrust and restrictive pratices cases. This article goes back to the legal reasons behind the current failure of the planned system. 1. Do we really want, today in France, this judicial specialisation in (...)

Jean-Yves Chérot Recovery: The Court of Justice ensures the effet utile of the EU State aid rules in the case of undertakings restructuring (AceaElectrabel)

16 December 2010 1443

CJEU, 16 December 2010, AceaElectrabel v Commission, Case C-480/09 P The Court applies the so-called "Deggendorf" case-law according to which the Commission is competent to suspend the authorisation of new aid which it declares compatible on condition that it reimburses aid previously (...)

Jean-Yves Chérot Risk Capital investments – SME: The European Commission increases the safe harbour for the public investments in small and medium-sized enterprises

7 December 2010 1017

Communication from the Commission amending the Community guidelines on State aid to promote risk capital investments in small and medium-sized enterprises, OJEU C 329, 7 December 2010, p. 4. One of the first instruments of SME policy are the ’Guidelines on State aid to promote risk capital (...)

Jean-Yves Chérot Partial remission of a tax debt: The General Court clarifies the test of a private creditor in a market economy (Frucona Košice)

7 December 2010 927

GCEU, 7 December 2010, Frucona Košice v. Commission, T-11/07 In that case, the Court of First Instance examines the conditions under which the Commission was able to reject the application of the market economy private creditor test to the acceptance by the Slovak tax authorities of a (...)

Jean-Yves Chérot Tax on the sale and renting of videos: Several French Administrative Courts of Appeal rule that a tax paid following a Commission Decision declaring such tax to be compatible must not have been granted in breach of Article 108(3) TFEU (Christophe A ; Spar Vidéo ; Le Temps retrouvé ; GPM Italie Tolbiac ; Yvannof Emmanuel - Club vidéo Jade)

24 November 2010 487

CAA Bordeaux, March 29, 2011, Christophe A, n° 10BX00976 CAA Nancy, April 14, 2011, Spar Video, No. 10NC00178 CAA Lyon, 9 June 2011, Le Temps retrouvé, n° 10LY01772 CAA Paris, November 24, 2010, GPM Italy Tolbiac, n° 10PA00079 and CAA Nantes, 30 December 2010, Yvannof Emmanuel - Club (...)

Antoine Winckler, David Bosco, Laurence Idot, Laurent Truchot, Olivier Sautel Repeated infringements in anti-competitive practices

December 2010 6111

Many recent cases, such as the Lafarge case in Europe or, in France, the Orange Caraïbe case, have shown how important is the question of repeated infringements when defining the amount of the fine in antitrust cases. Nevertheless, legal treatment of repeated infringements is still quite (...)

Jean-Yves Chérot 362 Warranties - Recovery: The General Court rules that the obligation to recover an illegal State aid is not affected by the fact that the domestic law of a Member State treats measures granting the aid as null and void (DHL Aviation and DHL Hub Leipzig)

7 October 2010 840

Trib. EU, 7 October 2010, DHL Aviation and DHL Hub Leipzig v Commission, Case T-452/08 In 2005, after negotiations with several airports, DHL decided to move its European air freight hub from Brussels to Leipzig/Halle, starting in 2008. On this occasion, DHL received several state aid (...)

Jean-Yves Chérot Qualification requirements for State aid: The General Court holds that payments on account prior to the approval of an agreement were paid without respecting the Altmark case law conditions (Fallimento Traghetti del Mediterraneo)

10 June 2010 1444

CJEU, 10 June 2010, Fallimento Traghetti del Mediterraneo, case C-140/09 The case in the main proceedings is already known because it gave rise to a first question referred by the Tribunale di Genova for a preliminary ruling by which the Court was asked whether the Italian law limiting the (...)

Jean-Yves Chérot Governmental statements: The General Court holds that governmental statements cannot involved State ressources on account of their open, imprecise and conditional nature, in particular as regards the nature, scope and conditions of possible State intervention (France Télécom)

21 May 2010 1159

General Court, 21 May 2010, France, France Télécom a.o. v. Commission, joined cases T-425/04, T-444/04, T-450/04 and T-456/04 Public statements, attributable to a State, by which a government announces support for an undertaking, in particular a public undertaking, and which may have the (...)

Jean-Yves Chérot Annulment for illegality: The General court holds that, if the annulment of the assessments were to lead, even provisionally, to a repayment of the aid previously reimbursed by its recipients, this would be incompatible with the effectiveness of the Commission’s decision ordering the recovery of the unlawful aid (Scott and Kimberly Clark)

20 May 2010 1307

CJUE, May 20, 2010, Scott and Kimberly Clark v. City of Orléans, Case C-210/09 Article 14(1) of Regulation 659/1999 provides that ’where negative decisions are taken in cases of unlawful aid, the Commission shall decide that the Member State concerned shall take all necessary measures to (...)

Jean-Yves Chérot Violation of art. 88(3) EC: The Council of State decides that the violation of art. 88(3) EC does not create a serious breach to a public interest to justify the intervention of a judicial emergency proceeding (Air France ; Airport of Marseille-Provence)

19 March 2010 1415

EC (ord. ref.), 19 March 2010, Air France and others. (Marseille-Provence airport), No 336405 The administrative court has been seised on numerous occasions of the Marseille-Provence airport’s fee-charging policy designed to make the new terminal dedicated to low-cost airlines attractive to (...)

Jean-Yves Chérot First application of EC Reg. 1370/2007: The European Commission issues the first application of EC Reg. 1370/2007 on public passenger transport services by rail and by road (Danske Statsbaner)

24 February 2010 2070

Eur. Comm., dec. C(2010) 975 final, 24 February 2010, Public service contracts between the Danish Government and Dankse Statbaner, case C 41/2008 (ex. NN 35/2008) The Commission had opened a formal investigation procedure on complaints from two passenger transport companies about alleged aid (...)

Jean-Yves Chérot Tax allocated to the State budget: The Nantes Administrative Appeal Court holds that a tax allocated to the State budget can not be an integral part of a State aid measure (Dijori)

28 December 2009 1667

CAA Nantes, December 28, 2009, SAS Dijori, n° 08NT00890 It will be recalled that in the Auchan judgment (EC 21 December 2006, req n° 288562, ConcurrencesNo. 1-2007, p. 128, obs. J-Y. C.), the Council of State had ruled that the tax on certain advertising expenditure introduced by Article 23 (...)

Jean-Yves Chérot Exercise of public powers: The CFI rules that the circumstances that a State uses financial ressources that are connected with the exercise of public powers do not justify to regard the State measures as actions connected with the exercise of public powers (EDF)

12 December 2009 2387

General Court, 12 December 2009, EDF v. Commission, case T-156/04 The assessment under the State aid rules of the policy of clarifying the status of the assets of EDF’s general supply network and its accounting and tax consequences provides an opportunity for the Court of First Instance to (...)

Jean-Yves Chérot Success of its crisis State aid coordination: The European Commission notes the progress of its State aid policy in its implementation by the Member States and the success of its State aid crisis coordination (State Aid Scoreboard)

7 December 2009 1847

Eur. Comm, 7 December 2009, State Aid Scoreboard, Autumn 2008 Update, COM(2009) 661 The State Aid Scoreboard is a document that complements information on State aid rules and policies with data to monitor their correct application and progress. The autumn 2009 update focuses on the year 2008 (...)

Jean-Yves Chérot Concept of State aid: The ECJ rules that the concept of State aid corresponds to an objective situation and that is why the EC Commission is not required to state the its reasons for making a different assessment of the regime in question in its previous decisions (Ireland)

2 December 2009 1888

CJ (EU), ch. gde, 2 December 2009, Commission v. Ireland and Others, Case C-89/08P. From this decision handed down by the Grand Chamber, we will remember in particular (see on other pointsAgnès Maîtrepierre’s commentary in the "Proceedings" column, this review ConcurrencesN° 1-2010) that the (...)

Jean-Yves Chérot Regional aid - Large investment projects: The European Commission publishes criteria for an in-depth assessment of regional aid to large investment projects

16 September 2009 2047

– Communication from the Commission concerning the criteria for an in-depth assessment of Regional aid to large investment projects, OJ C223, 16 September 2009, p. 3. As recalled by the Commission in its Communication under comment, a large investment project is defined by the Guidelines (...)

Jean-Yves Chérot Selectivity: The ECJ rules on the conditions of the selectivity of a State aid in a regional framework (Banco comercial dos Açores)

10 September 2009 1907

– CFI, 10 September 2009, Banco comercial dos Açores v Commission, Case T – 75/03 The judgment of the Court of First Instance of 10 September 2009 in Banco comercial dos A çores is a "parallel" decision to that already delivered by the Court of Justice in its judgment of 6 September (...)

Jean-Yves Chérot Simplification measures for State aid procedures: The EC Commission enacts new simplification measures enabling the speeding up of State aid control procedures

12 August 2009 1200

EC Commission, Communication on a simplified procedure for treatment of certain types of State aid, OJEU No C. 136 of 16 June 2009, p. 3. EC Commission, Code of Best Practices for the conduct of State aid control procedures, OJEU No C. 136 of 16 June 2009, p. 13. The Commission is continuing (...)

Jean-Yves Chérot State aid for training: The European Commission publishes the criteria for the compatibility of State aid for training subject to individual notification

11 August 2009 1988

– Communication from the Commission - Criteria for the analysis of the compatibility of State aid for training in cases subject to individual notification, OJEU No C. 188 of 11 August 2009, p. 1. The General Block Exemption Regulation No 800/2008 of 6 August 2008 exempts training aid from (...)

Jean-Yves Chérot Aid to disadvantaged and disabled workers: The European Commission publishes criteria for the compatibility of State aid to disadvantage and disabled workers subject to individual notification

11 August 2009 1858

Communication from the Commission. Criteria for the compatibility analysis of state aid to disadvantaged and disabled workers subject to individual notification, OJ C188 of 11 August 2009, p. 6. The Communication on criteria for the analysis of the compatibility of State aid for the (...)

Jean-Yves Chérot Tax on meat purchases : The French Council of State rules on the connexion between the financing tax and the aid measure (Boucherie du marché ; Montaudis)

27 July 2009 2762

– CE, 27 July 2009, Société Boucherie du marché, n° 31 2098 CE, 27 July 2009, Société Montaudis, n° 3 13502 The levy on meat purchases and then the slaughter levy were the subject of extensive litigation before the administrative court. This tax litigation goes through three (...)

Jean-Yves Chérot Rules of admissibility: The ECJ rules that a trade union may have the right to appeal against a decision of the Commission not to raise objections about a State aid (3 F)

9 July 2009 2155

– ECJ, 9 July 2009, 3F, aff. C-3 19/07 The judgment delivered by the Third Chamber of the Court in this case will attract the attention of those examining the case law, which is still difficult, still containing grey areas and still criticised for its complexity, on the admissibility (...)

Jean-Yves Chérot Recovery - Mechanism for extinguishing debts: The ECJ rules that, so long as it is provided for under the national legal system as a mechanism for extinguishing debts, a set-off operation can constitute an appropriate means by which State aid may be recovered (Greece)

7 July 2009 1837

– ECJ, 7 July 2009, Commission v. Greece, Case C-3 69/07. That judgment, delivered by the Grand Chamber, in Case C-47/99, on the interpretation and application of the rules on State aid, provides elements of substantial interest in the interpretation and application of the rules on (...)

Jean-Yves Chérot Art. 86.2 EC: The CFI clarifies the assessment of State aid not linked to a mission of general interest but constituting a certain form of organisation of public services (ASM Brescia - ACEA - AEM)

11 June 2009 2248

CFI, 11 June 2009, ACEA v Commission, Case T-297/02 CFI, 11 June 2009, AEM v Commission, Case T-301/02 CFI, 11 June 2009, ASM Brescia v Commission, Case T-189/03 CFI, 11 June 2009, Italy v Commission, Case T-222/04 Those four decisions of the Court of First Instance concern the action for (...)

Jean-Yves Chérot Aid to disadvantaged workers: The European Commission adopts guidance on training aid and aid to disadvantaged and disabled workers

3 June 2009 2017

EC. Comm, 3 June 2009, Communication on criteria for the compatibility analysis of state aid to disadvantaged and disabled workers subject to individual notification EC. Comm, 3 June 2009, Communication on criteria for the compatibility analysis of training state aid cases subject to (...)

Jean-Yves Chérot Public funding of broadband network: The European Commission consults Member States on the Broadband Guidelines on the application of EU State aid rules to public funding of broadband network

19 May 2009 2103

EC. Comm, 19 May 2009, Consultation on the Commission’s Broadband Guidelines on the application of EU state aid rules to public funding of broadband network The Commission opened a consultation on draft Guidelines on the application of state aid rules to the rapid deployment of broadband (...)

Jean-Yves Chérot Economic assessment of State aid: The European Commission consults Member States on a staff working paper "Common principles for an economic assessment of the compatibility of State aid under Article 87.3 EC”

15 May 2009 2868

EC Commission, 15 May 2009, Consultation on a working document "Common principles for the economic assessment of the compatibility of State aid under Article 87(3)". In a consultation document, DG Competition attempts to develop in a more concrete, comprehensive and precise manner the (...)

Jean-Yves Chérot WestLB restructuring plan and riskshield: The European Commission approves WestLB restructuring plan and riskshield (WestLB)

12 May 2009 1413

Commission Decision 2009/971/EC of 12 May 2009 on the State aid which Germany intends to grant for the restructuring of WestLB AG, Case C 43/08 (ex N 390/08), OJ L 345, 23.12.2009, p. 1. WestLB is a commercial bank based in North Rhine-Westphalia. As the supervisory bank for the Sparkassen (...)

Jean-Yves Chérot Aid to the coal industry: The European Commission consults Member States on the aftermath of the expiry of Regulation n° 1407/2002 on State aid to the coal industry

May 2009 1931

EC Comm, May 2009, Consultation paper on the aftermath of the expiry of Regulation 1407/2002 on State aid to the coal industry The Commission has decided on a stakeholder consultation in view of the forthcoming expiry of the Coal Regulation on 31 December 2010, taking into account both the (...)

Jean-Yves Chérot Best procedural practices: The European Commission consults on draft best practices Code on State aid proceedings

January 2009 2981

EC Commission, 11 December 2008, Public consultation on a draft Communication - Code of Best Practices for the conduct of State aid control procedures The Commission is consulting until 28 January 2009 on a forthcoming ’Code’ to supplement Regulation 659/1999 of 22 March 1999 laying down (...)

Jean-Yves Chérot Tax - Parafiscal charge on advertising companies: The ECJ issues new precisions about the link between a tax and a State aid (Régie Networks)

22 December 2008 3669

ECJ, 22 December 2008, Régie Networks v. Direction de contrôle fiscal Rhône-Alpes Bourgogne, case C-333/07 In the main proceedings, pending before the Cour administrative d’appel de Lyon, the applicant, Régie Networks, the NRJ group’s advertising agency, applied for discharge of the tax on (...)

Jean-Yves Chérot Selectivity: The ECJ rules that the Member State’s freedom to define their environmental policy does not exclude the application of State aid rule to an environmental levy (British Aggregates Association)

22 December 2008 2985

ECJ, 22 December 2008, British Aggregates Association v Commission, Case C-487/06P. Here the Court makes an interesting ruling on the selectivity of an aid scheme in the rather particular case of a "specific" measure such as an environmental tax. The United Kingdom has introduced a tax (...)

Jean-Yves Chérot Regional selectivity: The CFI rules that a measure conferring an advantage in only one part of the national territory is not selective on that ground alone for the purposes of Art. 87.1 EC (Gibraltar/Great Britain)

18 December 2008 2964

CFI, 18 December 2008, Government of Gibraltar and United Kingdom v Commission, cases T-211/04 and T-215/04. The Government of Gibraltar is planning to introduce a deeply original corporate tax regime. This system, which was intended to be applicable to all companies established in (...)

Jean-Yves Chérot State aid scoreboard : The EC released its latest scoreboard showing Member States moving towards better targeted aid (Automnu 2008 scoreboard)

17 November 2008 2344

EC Comm, 17 November 2008, State Aid Scoreboard, Autumn 2008 Update, COM(2008) 751 final The Commission updates the State Aid Scoreboard twice a year, in spring and autumn. It is a document of immense interest to complement the analysis of aid policy in all its dimensions with statistical (...)

Jean-Yves Chérot Recovery: The ECJ issues a new important case on State aid recovery’s rules (France)

13 November 2008 2854

ECJ, 13 November 2008, Commission v. France, Case C-214/07. The effective implementation of Commission decisions ordering Member States to recover unlawful state aid which the Commission has otherwise declared incompatible with the common market is among the Commission’s current concerns in (...)

Jean-Yves Chérot Public broadcasting service: The CFI highlights member State’s freedom to define the services of general economic interest in the field of broacasting (TV2/Danmark)

22 October 2008 2690

CFI, 22 October 2008, TV2/Danmark v. Commission, case T-309/04 The Commission recognised the tasks entrusted by Denmark to the public broadcaster TV2 as a service of general economic interest, but considered that the public financing of these tasks involved a lack of transparency and (...)

Agnès Maitrepierre, Alain Ménéménis, Amandine Zelenko, Anne Fort, Carine Soulay, Christian Lambert, Christopher Bellamy KC, David Spector, Denys de Béchillon, Emmanuel Glaser, Eric Ginter, François Tanguy, Guylain Clamour, Jacques Biancarelli, Jacques Derenne, Jean-Christophe Moraud, Jean-Claude Bonichot, Jean-Louis Colson, Jean-Marc Sauvé, Jean-Yves Chérot, Laurent Richer, Marie-Christine Lepetit, Marie-Dominique Hagelsteen, Mario Monti, Philippe Martin, Pierre-François Racine State Aid Colloquium, 14 March 2008

September 2008 10347

TABLE OF CONTENTS OPENING REMARKS Mr Jean-Marc SAUVÉ, Vice-President of the Conseil d’Etat Mr Mario MONTI, Former European Commissioner for Competition, President of the Bocconi University of Milan IS STATE AID CONTROL POLICY A COMPETITION POLICY? Introduction: Mrs Marie-Dominique (...)

Jacques Derenne, Jean-Yves Chérot Challengeable act: The ECJ holds that the administrative filing of a complaint relating to an alleged unlawful aid constitutes an act likely to be challenged under Article 230 EC and annuls an order of the CFI which declared inadmissible a request for the annulment of a complaint rejection (Athinaïki Techniki)

17 July 2008 3546

ECJ, 17 July 2008, Athinaïki Techniki AE v Commission, Case C-521/06 P. This judgment of the Court of Justice deserves attention because it differs so much from the position adopted by the Court of First Instance in opening up the admissibility of the actions of complainants whose complaints (...)

Jean-Yves Chérot Notion of State aid: The ECJ puts an end to the Chronopost-UFEX case (La Poste / UFEX)

1 July 2008 5347

ECJ, 1 July 2008, Chronopost SA, La Poste v Union française de l’Express (UFEX) and Others, cases C-341/06 P and C-342/06 P. The Court’s decision of 1 July 2008 in the reference cases puts an end, at least as regards its "State aid" aspect, to a long history which has marked State aid law (...)

Jean-Yves Chérot Altmark: The CFI holds that objective character of the State aid concept commands the use of a strict methodology and the procedural rules (Deutsche Post)

1 July 2008 3819

CFI, 1 July 2008, Deutsche Post AG v. Commission, Case T-266/02 This is a new decision formally addressing the question of the qualification of measures presented by the State and by the beneficiary as compensation for additional costs linked to charges for services of general economic (...)

Jean-Yves Chérot Public guarantees: The European Commission publishes a new Notice on the State Aid Action Plan in efforts to clarify and simplify State aid rules (Treaty to State aid in the form of guarantees)

25 May 2008 3501

EC. Comm, 25 May 2008, Notice on the application of Articles 87 and 88 of the EC Treaty to State aid in the form of guarantees, OJ C155, 20 June 2008, p.10. The important revised Commission Communication on the application of Articles 87 and 88 of the EC Treaty to State aid in the form of (...)

Jean-Yves Chérot Right of third parties: The ECJ clarifies the right of the parties concerned to participate in the formal State aid investigation procedure (Ferriere Nord SpA)

8 May 2008 3275

ECJ, 8 May 2008, Ferriere Nord SpA v Commission, Case C-49/05 P This judgment on appeal against thejudgment of the Court of First Instance of 18 November 2004 in Case T-176/01 is noteworthy.The Commission has also provided two general clarifications on the duration of the formal State aid (...)

Jean-Yves Chérot Pearle case law: The Council of State issues a questionable application of the Pearle case law (Coopérative Cooperl Hunaudaye and Fédération Syndigel)

7 May 2008 3523

CE, 7 May 2008, Cooperl Hunaudaye Cooperative and Fédération Syndigel, No. 278820 Here is a new judgment by which the Council of State, on the basis of and with the endorsement of the Pearle judgment (ECJ, 15 July 2004, C-345/02, ECR I-79, Concurrences, No. 1-2004, p. 79, obs. A. A.), the (...)

Jean-Yves Chérot Emissions trading schemes: The CFI issues a first interesting case on the application of the State aid notion to emissions trading schemes (Netherlands)

10 April 2008 4047

CFI, 10 April 2008, Netherlands v Commission, Case T-233/04 This is the first judgment concerning the application of State aid rules to environmental regulations included in tradable permit schemes. Until this judgment, we had only a few meagre indications. The Community guidelines on state (...)

Jean-Yves Chérot Altmark case law: The CFI renders a leading case with regard to the Altmark case law (BUPA)

12 February 2008 5991

CFI, 12 February 2008, BUPA and Others v Commission, Case T-289/03. In that judgment delivered in Extended Composition in a case brought before it in 2003, which therefore took almost five years to adjudicate on, the Court of First Instance delivered an important judgment with a pronounced (...)

Jean-Yves Chérot Railways transports: The European Commission publishes draft guidelines on State aids to railways transports

February 2008 3571

We would like to point out, although it is well ahead of the future guidelines that have been announced, this first consultation document on the Community guidelines on State aid to railway undertakings. This document serves as a contribution to a doctrinal clarification on an aid policy in (...)

Jean-Yves Chérot Access to official documents: The ECJ rules that a Member State cannot oppose, in an entirely discretionary manner and without having to give reasons for its decision, the disclosure of any document held by a Community institution simply because it originates from that State (Sweden)

18 December 2007 3908

ECJ, 18 December 2007, Kingdom of Sweden v Commission, Case C-64/05 P The Court of Justice delivered this very important decision in Grand Chamber on appeal against the judgment of 30 November 2004 (Case T-168/02 [2004] ECR II-4135) in which the Court of First Instance dismissed IFAW’s (...)

Jean-Yves Chérot Existing aid: The CFI raises by its own motion the Commission’s obligation to state reasons on the existing character of a State aid due to particular circumstances (Ireland, France, Italy)

12 December 2007 3785

CFI, 12 December 2007, Ireland, France, Italy a.o. v. Commission, cases T-50/06 a.o. The case is very interesting because it involves linking the system of state aid decisions under the procedures laid down in the Treaty with decisions that the Union institutions may take under other powers, (...)

Jean-Yves Chérot Recovery of State aid: The ECJ over rules arguments about the absolute impossibility of implementation and about the illegality of the Commission’s decision (Italy)

6 December 2007 3514

ECJ, 6 December 2007, Commission v. Italy, Case C-280/05. The judgment of 6 December 2007 in Case C-280/05 contains the Court’s usual reminders of the failure of a State, in this case Italy, to take the necessary measures within the prescribed time limits to abolish and recover from the (...)

Jean-Yves Chérot e-Competitions State Aids Research Program: Application of EC State aid Law by national Courts

December 2007 4051

Dans cet article, le Professeur Jean-Yves Chérot présente les deux premières séries de résultats du programme de recherche du bulletin e-Competitions dédiés aux décisions juridictionnelles nationales en matière d’aides d’Etat. Le Professeur Chérot et son équipe de chercheurs - universitaires (...)

Jean-Yves Chérot Link between the financing tax and the aid measure: The Administrative Paris Court of Appeal holds that French tax on meat purchases has not yet any connection with the subsidization of aid to the quartering sector (Boucherie Brodet, SAS Vitry)

1 October 2007 4238

CAA Paris, 1 October 2007, Boucherie Brodet, n° 06PA03997 CAA Paris, 5 November 2007, SAS Vitry, n° 06PA04277 The aid in the rendering sector and the levy on meat purchases which for a time financed these aid measures gave rise to numerous proceedings before the national courts (mainly for (...)

Sylvie Cimamonti Criminal Antitrust in the EU Member States: First results of the e-Competitions Research Program

1 October 2007 4310

1-In the wake of its predecessors on damages (directed by Prof. Denis Waelbroeck) and State aids (directed by Prof. Jean-Yves Chérot), the ambition of this e-Competitions research program on criminal antitrust is to report in a most exhaustive way, within the framework of the European Union, (...)

Jean-Yves Chérot Duty of the Commission: The CFI rules that mistaken approach taken in the implementation of a State aid measure does not create additional obligations for the Commission (Brandt Italia)

12 September 2007 3645

CFI, 12 September 2007, Italy and Brandt Italia SpA v. Commission, joined cases T-239/04 and T-323/04 By a Decree-Law of 14 February 2003 laying down urgent provisions on employment, converted into a Law of 17 April 2003, Italy adopted an aid scheme in response to the serious employment (...)

Jean-Yves Chérot Expiry of the ECSC Treaty: The CFI rules that the European Commission may, even after expiration of the ECSC Treaty, review State aid in the coal and steel sector in respect of situations existing prior to the expiry of that Treaty (Gonzalez y Diez)

12 September 2007 4350

CFI, 12 September 2007, Gonzalez y Diez v. Commission, Case T-25/04. The Gonzalez y Diez judgment is of particular interest because it states, in the name of ’the unity and continuity of the Community legal order and its objectives’ and, in particular in the present case, the unity and (...)

Jean-Yves Chérot Draft regulation: The European Commission opens consultations on simplified rules for block exemptions

8 September 2007 3754

EC Commission, Draft Regulation on the application of Articles 87 and 88 of the EC Treaty declaring certain categories of aid compatible with the common market (OJEU, No C. 210 of 8 September 2007, p. 14). The Commission launched an invitation to submit comments on the draft General Block (...)

Jean-Yves Chérot Recovery: The ECJ holds that EC law precludes the application of a provision of national law which seeks to lay down the principle of res judicata (Lucchini)

18 July 2007 4740

ECJ, 18 July 2007, Lucchini SpA and MICA, case C-119/05 On the basis of a national legislative provision, by a decision which was manifestly and seriously wrong, without regard to the provisions of the Treaty relating to the Commission’s powers in the field of State aid, and even though a (...)

Jean-Yves Chérot Existing aid/New aid: The CFI completes the examination of the EC decision to initiate procedure under Art. 88.2 against Italian maritime transport’s State aid as new aid (Tirrenia di Navigazione)

20 June 2007 3766

CFI, 20 June 2007, Tirrenia di Navigazione, Case T-246/99. The judgment comes in the action for annulment brought by undertakings (companies in the Tirrenia Group) providing maritime transport between the mainland and Sardinia under contracts with the State involving commitments relating to (...)

Jean-Yves Chérot Procedural obligations of the Commission: The CFI quashes the European Commission Commission’s decision for numerous procedural, method and calculation errors in the valuation of a land sale price (Scott)

29 March 2007 4051

CFI, 29 March 2007, Scott SA v Commission, Case T-366/00 Almost ten years after it was granted in 1987, on the basis of a complaint lodged in 1996, itself based on a 1996 report by the French Court of Auditors, the Commission initiated proceedings against France for aid allegedly contained (...)

Jean-Yves Chérot Assessment of the value of an aid: The CFI voids for a violation of the obligation of motivation an European Commission decision which assessed the value of a State aid by way of capitalization (Département du Loiret)

29 March 2007 4175

CFI, 29 March 2007, Département du Loiret v Commission, Case T-369/00 The Commission’s decision of 12 July 2000 concerning the State aid implemented by France for Scott Paper SA was the subject of, in addition to the action for annulment brought by the recipient undertaking against Article 2 (...)

Jean-Yves Chérot Altmark case law: The Court of Cassation checks the condition under which a Court of Appeal implements the Altmark test (Glaxosmithkline - ACOSS)

14 March 2007 5670

Cass. 2nd civ. 14 March 2007, Glaxosmithkline Laboratory and ACOSS, n° 04-30.053 The saga of the cases brought before the judicial judge by pharmaceutical companies for the restitution of sums paid as a contribution payable by them on the direct sale of medicines to pharmacies (Article L. (...)

Jean-Yves Chérot EU Law - Vol. II

February 2007 4968

This is the second volume of a work on the law of the European Union which opened with a volume devoted to the legal order and institutional law of the Union (The Law of the European Union. A New Constitutional Order. Materials and cases, by Alain A. Levasseur and Richard F. Scott, 2001, 1075 (...)

Jean-Yves Chérot Tax: The French Council of State rules that a tax entirely attributed to a fund is an integral part of an aid measure and has to be restituted since it has been put into effect in violation of Art. 88.3 EC (Auchan)

21 December 2006 4647

EC, 21 December 2006, Minister for the Economy, Finance and Industry v. Auchan France, No. 288562 The Conseil d’État was seized of a dispute concerning the refund of the tax on certain advertising expenditure instituted by the 1998 Finance Act and allocated entirely to the fund for the (...)

Jean-Yves Chérot Access to documents: The CFI interprets for the first time the right of access to documents in the State aid control procedure (Technische Glaswerke Ilmenau)

14 December 2006 4273

CFI, 14 December 2006, Technische Glaswerke Ilmenau GmbH v Commission, Case T-237/02 In control procedures under the State aid rules, interested undertakings, whether aid recipients or competitors, and in general all interested parties other than the Member State directly concerned by the (...)

Jean-Yves Chérot Reasonable period: The CFI holds that the mere adoption of a decision after the expiry of a reasonable period is not in itself sufficient to render unlawful a decision taken by the European Commission following a preliminary examination under Art. 88.3 EC (Empresarios de Estaciones de Servicio)

12 December 2006 5624

CFI, 12 December 2006, Asociación de Empresarios de Estaciones de Servicio de la Comunidad Autónoma de Madrid a.o. v. Commission, Case T-95/03 By its decision of 12 December 2006 in Case T-95/03, the Court of First Instance adjudicated for the first time in State aid proceedings (see, (...)

Jean-Yves Chérot Debt waiwer: The CFI takes position on the reference to calculate the value of preferential shares (Ter Lembeek International)

23 November 2006 4976

CFI, 23 November 2006, Ter Lembeek International NV v. Commission, Case T-217/02 The Court of First Instance examines, after the Commission, the conditions under which the Walloon Region, through the Société de gestion des participations de la région wallonne (Sowagep), accepted, after an (...)

Jean-Yves Chérot Power of national Courts: The ECJ holds that a Commission decision finding aid compatible does not have the effect of regularising ex post facto implementing measures which were invalid because they were taken in violation of the prohibition laid down by the last sentence of Article 88(3) EC (Transalpine Ölleitung in Österreich Gmbh (TAL))

5 October 2006 4352

ECJ, 5 October 2006, Transalpine Ölleitung in Österreich Gmbh (TAL) and Others v Finanzlandesdirektion für Tirol and Others, Case C-368/04. By its TAL judgment of 5 October 2006, the Court is led to confirm two well-established case-law decisions. However, the judgment does not lack interest (...)

Jean-Yves Chérot Suspensory effect: The ECJ holds that by providing for the suspensory effect of actions brought against demands for payment issued for the recovery of aid granted, the procedure laid down by French law and applied in the present case cannot be considered to allow the "immediate and effective" execution of the Commission decision (Commission v. France)

5 October 2006 4955

ECJ, 5 October 2006, Commission v. France, Case C-232/05. Under the principle of the primacy of Community law, national courts (like the administrative authorities themselves) must leave national rules contrary to Community law unapplied. Thus, the Court has been able to require national (...)

Jean-Yves Chérot Burden of proof: The ECJ decides on the specific case where a tax constitutes the creation of an aid scheme (Laboratoires Boiron)

7 September 2006 4466

ECJ, September 7, 2006, Laboratoires Boiron, Case C-526/04 For the first time, the Court holds that a tax forms an integral part of an aid scheme even though it does not serve directly to finance an aid since it is an asymmetrical tax created to restore equality in competition between (...)

David Bosco Exclusivity clauses and abuse of dominant position: EC and French Case Law

September 2006 8410

This contribution deals with the severity of competition authorities towards exclusive arrangements, in the abuses of dominant position control, through two examples. The exclusivity of membership is not forbidden in itself but the comparison of several cases shows that it is very difficult to (...)

Jean-Yves Chérot State imputability: The French Council of State, by reference to the Pearle doctrine, decides that compulsory levies allowing interprofessional agricultural market policies do not belong to the State aid rules (Confédération paysanne)

21 June 2006 5124

EC, 21 June 2006, Confédération paysanne, No. 271450 With explicit reference to the judgment of the Court of Justice of 15 July 2004 (ECJ, Pearle and others, Case C-345/02, ECR p. 7139; see comment A.), the Court of Justice of the European Communities (ECJ, Pearle and others, Case C-345/02, (...)

Jean-Yves Chérot National Courts powers: The ECJ applies once again the Streekgewest case law (Air Liquide)

15 June 2006 4425

ECJ, 15 June 2006, Air Liquide Industries Belgium, cases C-393/04 and C-41/05. This is a new application of the now stabilised and consolidated case-law on the consequences which can be drawn from the illegality of a tax exemption under the provisions of Article 88(3) EC on the system of (...)

Jean-Yves Chérot Difference of taxes: The CFI annuls once again the Commission decision in the Chronopost case (UFEX, DHL international)

7 June 2006 5338

CFI, 7 June 2006, UFEX, DHL International, a.o. v. Commission, Case T-613/97 RV The first complaint to the Commission by the trade association (at the time SFEI, now UFEX) alleging State aid under the conditions under which the Post Office provided logistical and commercial assistance to its (...)

Jean-Yves Chérot Notification: The ECJ holds that only Member States can notify, not the undertaking receiving the aid (P&O European Ferries)

1 June 2006 4215

ECJ, 1 June 2006, P&O European Ferries, Diputacion Foral de Vizcaya v. Commission, joined cases C-442/03 P and C-471/03 P The case of the purchase of travel vouchers by the Diputacion Fora de Vizcaya to encourage the installation of P&O European Ferries in the port of Bilbao and the (...)

Jean-Yves Chérot Time limit: The CFI holds that the European Commission cannot prolong indefinitely its preliminary investigation (Air One)

10 May 2006 4870

CFI, 10 May 2006, Air One SpA v. Commission, Case T-395/04 The rights that complainants can invoke against the Commission are always delicate to define and implement in the State aid control procedure which normally brings the Commission and the Member State in question into contact. The (...)

Jean-Yves Chérot Notion of normal charge: The ECJ explains the notion of exceptional withdrawal right of shareholders (Enirisorse/Sotacarbo)

23 March 2006 5455

The Court clarifies the concept of a normal charge in the case of a shareholder’s exceptional right of withdrawal ECJ, 23 March 2006, Enirisorse, case C-237/04 It is clearly established that any financial intervention by the State which reduces the normal costs borne by undertakings (...)

Antoine Gosset-Grainville, Denis Samuel Lajeunesse, François Souty, Frederic Jenny, Guillaume Cerutti, Hubert Legal, Jacques Barrot, Jacques Derenne, Jacques-Philippe Gunther, Jean-Patrice de La Laurencie, Jean-Yves Chérot, Laurence Idot, Marc van Hoof, Marie-Dominique Hagelsteen, Nicola Pesaresi, Valérie Rabassa, Xavier de Roux Conference: The EC State Aid Reform (Paris, 8 December 2005)

February 2006 18716

The proceedings of this colloquium are organised in two parts. In the first stage, the two main axes of the reform are studied: In substantive terms, the aim of the Community reform is to introduce a more economic analysis of aid in this area too. Following the presentation made by Ms Rabassa (...)

Jean-Yves Chérot Art. 88.3 EC: The Council of State confirms the scope of the mission of national courts for the enforcement of State aid rules (Ryanair)

27 February 2006 5615

EC, 27 February 2006, Ryanair, n° 264406 The Conseil d’État points out that, ’while it is the exclusive competence of the Commission to decide, under the supervision of the Court of Justice of the European Communities, whether or not aid of the nature referred to in Article 87 of the Treaty (...)

Jean-Yves Chérot Legitimate expectations - Legal certainty: The ECJ implements separately the protection of legitimate expectations and legal certainty principles (G. Atzeni - Marco Scalas)

23 February 2006 8380

The Court of Justice of the EC conducts a pedagogical analysis of the legal bases of the Commission’s intervention concerning State aid in the agricultural sector by setting out the methodology for applying the various relevant regulations and applies separately the principle of legitimate (...)

Jean-Yves Chérot Application at local level: The French Prime Minister adopts a circular setting for the procedure to be followed at the local level (Circular 26 Jan. 2006)

31 January 2006 4026

Circular of 26 January 2006 relating to the application at local level of the Community competition rules relating to public aid to companies, JORF n° 26 of 31 January 2006 page 1602 On 26 January 2006, the Prime Minister sent a new circular to the ministers, prefects and general (...)

Jacques Derenne, Jean-Yves Chérot Art. 88.3 EC: The Administrative Court of Appeal of Paris holds the State accountable for granting an un-notified aid (Salmon Arc en Ciel)

23 January 2006 5606

CAA Paris, January 23, 2006, Groupe Salmon Arc en Ciel, n° 04PA01092 Principles of Member State responsibility The judgment of the Administrative Court of Appeal of Paris (CAA de Paris) is delivered in a case in which it is recognised for the second time (at least in France; see below) that (...)

Jean-Yves Chérot Guide-lines: The ECJ confirms that appropriate measures may be binding (EC/Luxembourg)

12 January 2006 4439

The Court of Justice of the EC confirms the binding nature of the State aid guidelines which have been accepted by a Member State ECJ, 12 January 2006, Commission v. Luxembourg, Case C-69/05 By the ’Community guidelines for State aid in the agriculture sector’ the Commission requires (...)

Jean-Yves Chérot Selectivity - Economic entity: The ECJ holds that an economic activity can be both the fact of an operator acting directly on the market and of another entity (Cassa di Risparmio di Firenze)

10 January 2006 6195

ECJ, 10 January 2006, Cassa di Risparmio di Firenze and others. Case C-222/04, not yet published in the ECR. This is one of the first cases in which the Court has had to interpret the concept of "undertaking" in the context of State aid law. The concepts of ’undertaking’ and ’economic (...)

Laurent Teresi Public data under the scrutiny of Competition Law

December 2005 5210

This article is a sinthesis of EC and French jurisprudence that took place within public sector information’s exploitation.It reminds us of the chief lines that stemed from the Decisions of the 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of the (...)

Jean-Yves Chérot Regional aid: The European Commission publishes new Guidelines on national regional aids (Guidelines 2007-2013)

21 December 2005 4422

EC Commission, Guidelines on national regional aid for 2007-2013, OJEU No C. 54, 4 March 2006. The Commission was faced with a difficult exercise to adopt the new regional aid guidelines for 2007-2013 to follow the 1998 guidelines which expire at the end of 2006. At the same time, it had to (...)

Jean-Yves Chérot Privatization: The ECJ holds that a privatization process cannot qualify as an important project of common European interest (Italy/Commission)

15 December 2005 4600

ECJ, 15 December 2005, Italy v. Commission, case C-66/02 Italy has brought an action for annulment of the Commission’s decision of 11 December 2001 on the State aid scheme implemented by Italy for banks. The aid scheme in question was contained in the legislative decree of 17 May 1999 (...)

Jean-Yves Chérot Aid Recovery: The ECJ rejects the legitimate expectations argument (Unicredito Italiano)

15 December 2005 4323

ECJ, 15 December 2005, Unicredito Italiano SpA, Case C-148/04. In that case, the Court was seised by a national court of the legality of a Commission decision declaring State aid incompatible with the common market and ordering the recovery of the incompatible aid once it had been unlawfully (...)

Jean-Yves Chérot Notification: The ECJ holds that there is no binding link between a tax and a State aid measure (Casino)

27 October 2005 4400

ECJ, 27 October 2005, Distribution Casino France SAS and others, cases C-266/04 to C-270/04, C-276/04 and C-321/04 to C-325/04. The Cour d’appel de Lyon and the Tribunal des affaires de sécurité sociale de Saint-Étienne referred to the Court of Justice the question whether the tax on aid to (...)

Jean-Yves Chérot Action for annulment: The CFI holds that publication in the Official Journal of a summary of the EC Decision which enables third party to identify the decision and has access to the full text triggers the time-limit period (Air Bourbon)

19 September 2005 4094

CFI (ord.), 19 September 2005, Air Bourbon v. Commission, Case T-321/04 This case is interesting because it recalls the principles applicable as regards the starting point for the time limit for appealing against a Commission decision not to raise objections against aid the text of which (...)

Jean-Yves Chérot State Aid Action Plan: The European Commission publishes consultation paper on an exhaustive reform of State aid (State aid reform 2005-2009)

31 August 2005 4718

EC Comm, Consultation, June 2005, State Aid action plan: Less and better targeted state aid: a roadmap for state aid reform 2005 - 2009 1. In this important document, the Commission proposes guidelines for a comprehensive reform of state aid policy. This reform is based on four main ideas (...)

Jean-Yves Chérot New State Aid - De minimis: The ECJ holds that the European Council has no jurisdiction under Art. 87.3 e) to exempt a Member State to notify new State aid and that the "de minimis" does not apply in order to assess the effect on trade between Member States (Xunta de Galicia)

21 July 2005 4334

ECJ, 21 July 2005, Xunta de Galicia, case C-71/04 A question was referred to the Court for a preliminary ruling on the interpretation to be given to Council Directive 90/684 of 21 December 1990 establishing new rules on aid to shipbuilding, adopted on the basis of Article 87(3)(e) EC. The (...)

Jean-Yves Chérot Aid for restructuring firms: The European Commission holds that the State aids to the Imprimerie Nationale are compatible (Imprimerie Nationale)

20 July 2005 4246

Commission decides to declare restructuring aid for Imprimerie Nationale compatible with the common market EC Comm, C(2005) 2716, 20 July 2005, Restructuring Aid to the Imprimerie Nationale, case N 370/2004 - France The application of the guidelines on State aid for rescuing and (...)

Jean-Yves Chérot EC Action plan: The European Commission revises the Guidelines on State aid for Environmental Protection (Draft Project on National Regional Aid)

15 July 2005 3998

EC Commission, July 2005, Draft Guidelines on national regional aid EC Commission, August 2005, Revision of the Community guidelines on State aid for environmental protection The initiatives for the implementation of the State aid reform agenda contained in the State Aid Action Plan (see (...)

Jean-Yves Chérot Control mechanism: The ECJ holds that the European Commission can, provided it has sufficient information, issue either a conditional decision or a negative one, at its discretion (Sardinia)

15 June 2005 4727

CFI, 15 June 2005, Regione autonoma della Sardegna v. Commission, case T-171/02 The Commission decided by decision of 13 November 2001 that the draft aid scheme notified by Italy in January 1998 and which the region of Sardinia intended to implement for small agricultural enterprises in (...)

Jean-Yves Chérot Recovery: The ECJ holds that a debt-free transfer of assets to a new company is an obstacle to executing a Commission decision requiring the recovery of State aid (Commission/Greece)

12 May 2005 5427

ECJ, 12 May 2005, Commission v. Greece, Case C-415/03. The judgment of the Court was delivered on an action for failure to fulfil obligations brought against Greece for failure to adopt the measures necessary to recover various aid pursuant to a Commission decision of 11 December 2002 (OJEU (...)

Jean-Yves Chérot Existing Aid/New Aid: The ECJ lays down the duties incumbent on the Commission whenever it opens a formal investigation under Article 88(2) EC if the Member State concerned alleges either that the measures in question do not constitute State aid (Italy/Commisson)

10 May 2005 4596

ECJ, 10 May 2005, Italy v. Commission, Case C-400/99 Italy’s action against the Commission’s decision of 6 August 1999 to initiate the procedure laid down in Article 88(2) EC in respect of the aid granted to the companies of the Gruppo Tirrenia di Navigazione has already given rise to the (...)

Jean-Yves Chérot Annulation: The CFI annuls the "Livret bleu" decision for insufficient reasoning and expresses its regret that the clarification given in the Altmark case was not available to the Commission (Crédit Mutuel)

18 January 2005 4358

CFI, 18 January 2005, Confédération nationale du Crédit mutuel v. Commission, Case T-93/02 In its decision of 15 January 2002, the Commission took the view that the "measures taken by France in favour of Crédit Mutuel for the collection and management of regulated savings under the "Livret (...)

Jean-Yves Chérot Principle of one-off aid: The European Commission states that the principle of one-off aid does not apply absolutely and should not limit the cases where aid can be deemed "necessary" (Bull)

1 December 2004 4426

EC Commission, dec. 2005/941/EC, 1 December 2004, on the State aid which France is planning to implement for Bull The Commission’s decision on the state aid which France is planning to implement for Bull is an application of the rules laid down in the Community guidelines on state aid for (...)

Jean-Yves Chérot Grant: The CFI holds that analyzing the effect that a grant will have on competition requires the European Commission to take into account whether or not the market in question is in decline (Kronofrance)

1 December 2004 5094

CFI, 1st December 2004, Kronofrance SA v. Commission, case T-27/02 The Multisectoral Framework on regional aid for large investment projects was adopted by the Commission on 16 December 1997 to enable it to correct the over-incentive effect that regional aid schemes can have on large (...)

Jean-Yves Chérot Principle of legitimate expectations: The CFI holds that a business cannot rely on the principle of legitimate expectations during the formal investigation procedure in order to resist the immediate application of a new regulation on State aid with regard to aid previously notified under a former regime (Ferriere Nord)

28 November 2004 5045

CFI, 18 November 2004, Ferriere Nord SpA v. Commission, Case T-176/01 The Court of First Instance had before it the question whether an aid project notified to the Commission under a previous framework could be examined by the Commission at the stage of the formal procedure for examining the (...)

Jean-Yves Chérot Eligibility - Environmental State aid: The CFI holds that in order to be eligible for environmental State aid, a project must have the improvement of environmental performance as its objective, and not merely a collateral benefit (Ferriere Nord)

18 November 2004 4353

CFI, 18 November 2004, Ferriere Nord SpA v. Commission, Case T-176/01 The judgment of the Court of First Instance of 18 November 2004 in the Ferriere case contains an interesting clarification concerning the investment costs which may be the subject of aid authorised by the Commission for (...)

Jean-Yves Chérot Guidelines: The CFI holds that the European Commission reserves its right to determine the existence of a SME, in spite of previous guidelines on the subject (Pollmeier Malchow)

14 October 2004 4219

CFI, 14 October 2004, Pollmeier Malchow GmbH v. Commission, Case T-137/02. The judgment of the Court of First Instance in the Pollmeier case is of particular interest because, while recalling that the Commission is bound by the frameworks and communications which it adopts in the field of (...)

Jean-Yves Chérot Failing companies : The European Commission publishes new Guidelines

1 October 2004 4263

EC Comm, 1 October 2004, Community guidelines on State aid for rescuing and restructuring firms in difficulty Aid for rescue and restructuring operations is among the most distortive types of State aid and has been the subject of cases, often very often with very high distortion of (...)

Jean-Yves Chérot Notion of State Aid (advantage): The European Commission holds that declarations by national authorities in favour of a public undertaking which are sufficiently clear, precise and definite, and which evidence the existence of credible State involvement, may turn a shareholder advance into State aid (France Telecom)

2 August 2004 4837

The Commission’s decision of 2 August 2004 on the state aid implemented by France in favour of France Télécom gave rise to a major legal battle over whether statements by a government in support of a public undertaking could be regarded as state aid. The Commission took the view that, since (...)

Jean-Yves Chérot Reimbursement of the Aid: The CFI holds that the general principles of law do not allow a beneficiary to reserve itself a particular role in proceedings (Technische Glaswerke)

8 July 2004 4571

CFI, 8 July 2004, Technishe Glaswerke Ilmenau GmbH v. Commission, Case T-198/01 The Commission had decided that the waiver by the BvS, the body responsible for restructuring and selling off companies in the former GDR, to a significant part of its the claim in favour of Technishe Glaswerke (...)

Jean-Yves Chérot Recovery of unlawful State Aid: The CFI holds that the amount of aid repayable corresponds to the amount of the debt renounced, and not to the loss which would have been incurred had the company been put into liquidation (Technische Glaswerke Ilmenau)

8 July 2004 4198

CFI, 8 July 2004, Technishe Glaswerke Ilmenau GmbH v Commission, Case T-198/01 In that case the Court rejects the argument that, in the case of aid resulting from the waiver by a creditor of a part of its claim against a company which is thus avoided being put into liquidation, the aid which (...)

Jean-Yves Chérot Powers of the Council vs. Commission: The ECJ holds that once the European Commission has ruled definitively on a State aid grant, the Council is unable to make a ruling on it itself (Commission c./Conseil)

29 June 2004 5276

ECJ, 29 June 2004, Commission v. Council, case C-110/02 The Council had authorised, at the request of Portugal, aid to farmers to fully compensate them for reimbursements they owed as a result of the order for recovery of previous aid contained in two negative Commission decisions. In the (...)

Jean-Yves Chérot Recovery of unlawful State aid: The ECJ holds that a company which has been granted unlawful State aid and continues to carry on the subsidised activities and which has maintained its legal personality gains a competitive advantage with regard to that aid and must repay an amount equal to the grants (Germany/Commission)

29 April 2004 5233

ECJ, 29 April 2004, Germany v. Commission, Case C-277/00 Here is a judgment which clarifies the principles which should guide the search for the real beneficiary of the aid in the case where the control of Concurrences- RDLC, December 2004 - N°1 86 the original recipient enterprise has been (...)

Bulletin

Foreword

Sylvie Cimamonti Criminal Antitrust Decisions in the EU: First results of the e-Competitions Research Program

1 September 2007 3324

In the wake of its predecessors on damages decisions in the EU (directed by Prof. Denis Waelbroeck: See e-Competitions Damages Research Program: Volume I - Volume II - Volume III and the e-Competitions State aids Research Program (directed by Prof. Jean-Yves Chérot; See Volume I, the ambition (...)

France

François Lichère The French Supreme Administrative Court rules that a contracting authority may limit the number of lots awarded to a single contractor to foster competition and may award a lot to a public law entity (Laboratoires Biomnis)

20 January 2013 137

The first point, which had never been dealt with by the Conseil d’Etat, is an important one since the French courts having jurisdiction as to the substance of the matter had adopted different positions and since neither the directive 2004/18 nor the Code des marchés publics (public procurement (...)

François Lichère The French Supreme Administrative Court adopts a strict approach with regards to equal treatment of bidders in case of a false information from the contracting authority (Dynacité)

12 March 2012 323

On 12 March 2012, the French Council of State, the supreme administrative court responsible for reviewing judgments of the lower administrative courts in particular in the field of public procurement contracts, ruled on an unusual question. A contracting authority, Dynacité which is in charge (...)

Sacha Raoult The French Supreme Court rules that the ability for dealers to effectively compare prices with competitors is an essential feature of the price determining process (Hyper Saint-Aunes Leclerc / Societe Carrefour hypermarches)

4 October 2011 395

The Facts of the Case For several years now, the French distribution company Leclerc has been distinguishing itself from its competition by a heavy emphasis on prices, which have been consistently claimed to be the lowest of the “hypermarché” market. However, such a advertising strategy was (...)

Sacha Raoult The French Criminal Supreme Court rules that State authorized monopoly on horse betting is not an illegal anticompetitive practice (Gambling monopoly)

9 February 2011 111

Crime, State and free competition One may argue that most illegal activities conducted by criminal organization are mainly infringements over the monopoly of the State. Private Justice, illegal gambling, racketeering and drug-trafficking are behaviors that more or less mimic states practices (...)

Sacha Raoult The French Criminal Supreme Court rules that State authorized monopoly on horse betting is not an illegal anticompetitive practice (Gambling monopoly)

9 February 2011 125

Sacha Raoult The French Criminal Supreme Court rules that State authorized monopoly on horse betting is not an illegal anticompetitive practice (Gambling monopoly)

9 February 2011 111

Sacha Raoult The French Criminal Supreme Court rules that illegally obtained evidence cannot be used before the Competition Authority (Phillips / Sony)

7 January 2011 540

I. The Issues at Hand In France, the competition authority (Autorité de la concurrence that used to be known as the Conseil de la concurrence) is in charge of ruling cases of anticompetitive practices. Even though it is not technically a court, one can appeal its decisions before the Appeal (...)

Sylvie Cimamonti The French Criminal Supreme Court confirms the criminal sanction inflicted to a company for prices below-cost practices in the domestic gas distribution sector (Pétrovex)

6 December 2006 3558

French Criminal Supreme Court (Cour de cassation, chambre criminelle), 6 December 2006, Société Pétrovex, Decision n° 06-81947, relating to restrictive practices in domestic oil distribution sector Douai Court of appeal (Cour d’appel de Douai, 6ème chambre correctionnelle), 12 janvier 2006, (...)

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 3719

The law that prohibits below-cost price in France is very plainly stated in the French Commercial Code (Article L.442-2) and defines the act as “reselling ... a product below its effective cost. This rather simple definition leaves a lot of room for the French Supreme Court to define what (...)

Jean-Yves Chérot Three French Courts acknowledged State’s liability towards aid recipients for not having granted un-notified State aid (Kélian / Fontanille / Salmon Arc-en-ciel)

15 October 2003 4201

These two cases are in relation to the setting of the plan Borotra (Article 99 of Law n° 96-314 of 12 April 1996 implementing various economic and financial provisions) aimed at fighting the fall of employment in the textile, clothing, leather and footwear industries. The Law permitted the (...)

Jean-Yves Chérot French Administrative Courts repeatedly rules that Art. 87.1 EC does not have direct effect and tacitly considered that they do not have to raise by their own motion a potential breach of Art. 88.3 EC (14 cases)

5 March 2003 3678

1. Introduction The present note is a comment on not less than fourteen Courts decisions in which the French administrative Courts repeatedly ruled that parties cannot, on the basis of former article 92 EC (now article 87 EC) alone, challenge the compatibility of an aid with the common (...)

Jean-Yves Chérot The French Judiciary Supreme Court makes a clear difference between examination of the compatibility of a State aid and control of the legality of the aid (Le Guen / Guyomarch)

23 October 2001 3925

The claims for reimboursement of what the French statutes call “compulsory contributions”, a kind of professional taxation financing agricultural organizations, is one among most alive sources of the implementation of the State aid law in France (see also the cases relating CNIH, French (...)

Jean-Yves Chérot The French Administrative Supreme Court rules that EU competition provisions do not prevent public institutions to act as services providers competing with private undertakings (Guiavarc’h)

5 September 2001 3807

Gweltaz Guiavarc’h claimed that the provisions relating to the conditions in which the public universities and the public research agencies can provide research services on the market broke Community law, and in particular, State aid provisions. The French Administrative Supreme Court ruled (...)

Jean-Yves Chérot The French Administrative Supreme Court rules that the mere fact an undertaking may benefit from State aid can not interfere with the regularity of a tendering procedure (Bouygues)

28 July 1999 5989

The French administrative supreme Court had already ruled in the Société Générale case (French Administrative Supreme Court (Conseil d’État, Assemblée), 18 December 1998, Société Générale, Banque Nationale de Paris, Crédit Commercial de France v. Ministre de l’économie, des finances et de (...)

Jean-Yves Chérot The French Administrative Supreme Court declares void an aid running contrary to EU fishering policy objectives (Languedoc Roussillon / Serres)

11 June 1999 4239

The Languedoc Roussillon Regional Council granted on the 23 July 1991 to M. Thierry Serres a subvention of 20 360 FF (around 28 000 €) for the replacement of an existing fishing ship by a new - larger - one. The Prefect, in charge of the State interests in the department, challenged the (...)

Jean-Yves Chérot The French Supreme Administrative Court welcomes actions claiming release or reimbursement of a tax financing a State aid in case of absence of notification of the statute setting up the tax (CNIH)

6 November 1998 4338

Background It is settled case law that the implementation of the system of supervising State aid is a matter for both the Commission and, having regard to the direct effect of the last sentence of article 88 (3) EC, the national courts. The European Court of Justice ruled in two historical (...)

Jean-Yves Chérot The French Administrative Supreme Court rules that indemnities for the services performed by undertakings in collecting and/or disposing of waste oils do not constitute State aid (Union des industries chimiques)

5 October 1998 4118

The claimants requested the annulment of a decree creating a special tax levied on the production or importation of basic oils in France which aims was to support the collection, treatment and elimination of wasted oils. Part of this tax was allocated to undertakings collecting and disposing (...)

Jean-Yves Chérot The French Judiciary Supreme Court rules that the claimants had not demonstrated that the tax constituted State aid and failed to submit argument on a possible existing aid (Huttepain Maine Aliments / Guyomarc’h Vertou / Nantes Sanders / Marcel Braud)

16 June 1998 4238

Background The French State had levied a special tax for cereal storage during the 1986-1987 and 1987-1988 campaigns. Various agricultural companies claimed the reimbursement of the tax before the national first instances courts on the basis of Article 88 (3). Some of these first instance (...)

Jean-Yves Chérot The French Administrative Supreme Court refers to the EU Court of Justice for preliminary ruling a case on tax deduction that is limited to expenditure for research carried out in the State of taxation (Baxter)

28 March 1997 1045

Three pharmaceuticals companies engaged an action for the annulment of a State ordinance which established emergency measures aiming at the re-establishment of the balance of social security consisting in exceptional contributions to be paid by pharmaceuticals companies. One of these (...)

United States of America

Sacha Raoult Criminalizing Competition Law in the United States: An introduction to the origins of antitrust law

31 May 2007 3929

Criminal statutes of the United States that are aimed to enforce competition are of federal origin, and were originally designed and applied to regulate inter-state commerce, even if eventually the scope of these laws was broadened to all markets. This is one of the historical features that (...)

Events

6 Oct 2021 Paris New Concurrences Book Collection See documents

1 Apr 2021 Webinar Private Enforcement #4 Imputability, interest in bringing an action and causal link See documents

14 Nov 2019 Paris Competition and regulation: How to coordinate the interventions of competition authorities and sectoral regulators? See documents