SMEs and prohibited practices under the dominance threshold (2nd German-French Competition Day, Bonn, 22 September 2006)

– Introduction: In the opening speech at the second French German day of competition, Dr. Ulf Böge, president of the Bundeskartellamt (or German competition authority) insisted on the state of exchanges and on the cooperation between the two French competition authorities. Mr. Bruno Lasserre, President of the French Competition Council, presented the subject at stake «Protection of competition or protection of SMEs? Prohibited practices below the threshold of dominance» and pointed out the importance of SMEs in France and in Germany and underlined that community texts let room for Member States. The debate is linked to the project of community guidelines on section 82EC. Is the rule adapted to SMEs? Does the maintenance of other rules have to be considered? The author concludes with three general thoughts: Is the protection of SMEs necessary in competition law? If this protection is necessary, how should it be organized? What are the obtained or expected results?

– Part I - SMEs: The first round table of the second French German day leads to question the economic justifications which can motivate the application of antitrust rules differentiated according to the size of the company involved. Numerous specific provisions exist in French law and in German law, belonging both to antitrust law, applied by competition authorities and to commercial law, applied by the judge. Moreover, these rules are constantly changing. This profusion of rules leads to significant debates.

– Part II - Prohibited practices under the dominance threshold: Resale below cost has been regulated for a long time both in France and in Germany. However, since Germany has beeb considering reinforcing this prohibition, this round table aims at establishing the basis of each of these two systems and to question the consistency between the goal officially sought and the subject of the prohibition of resale below cost and other prohibited practices below the dominance threshold.