INTERVIEW : MARIE-DOMINIQUE HAGELSTEEN - REPORT ON NEGOTIABILITY

Marie-Dominique Hagelsteen (French State Council): Why negotiability?

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- Could you recall the origin and background of the working group you chaired?

- What are the main proposals in your report and why?

- Before initiating a new reform, shouldn’t we have given ourselves a little time to assess the real effects of the Chatel law of January 3, 2008 and the introduction of the "three times net" PRS on the evolution of resale prices to consumers?

- After the transition to the "triple net", could it not be envisaged that back margins and in particular "trade cooperation" services and separate services would be eliminated altogether?

- What were the arguments and opposition expressed to the solution advocated in your report, namely the free negotiability of tariffs and GTCs through the removal of the per se ban on discriminatory practices?

- What legal value do you attach to the supplier’s terms and conditions in the context of the solution recommended in your report?

- Has consideration been given to putting all services (trade cooperation and separate services) at a reduced price on suppliers’ invoices?

- Has it been envisaged that the free negotiability of the terms and conditions of sale could lead to the abolition not only of the prohibition of discrimination (L 442-6-I-1° of the Commercial Code) but also of the prohibition of obtaining an advantage without consideration or which is manifestly disproportionate, which applies both to price reductions and to services (L 442-6-I-2° of the Commercial Code)?

- Some operators would have liked to see a derogatory regime put in place for SMEs within the framework of the free negotiability of the GTCs and tariffs recommended in your report. Your report seems to rule out this option. Beyond the marginal case of SMEs with real market power in niche markets, is the size of the company not the right criterion?

- What should be the response to suppliers who fear that the disappearance of the per se ban on discriminatory practices will lead to abuses in trade negotiations?

- How can the disappearance of the prohibition per se of discriminatory practices in the law on restrictive practices be reconciled with its retention in national and Community law of anti-competitive agreements and abuses of dominant position?

- Your report recommends that the abusive practices referred to in Article L. 442-6 of the Commercial Code be more severely punished by raising the ceiling of the civil fine. How can we ensure that the commercial courts will consistently apply such a sanction?

- What do you think of the possibility of setting the maximum civil fine as a percentage of the amount of the sums unduly collected?

- Your report proposes a number of "accompanying measures" for the reform. Could you specify what these measures might be?

The answers to these questions appear in a comprehensive text submitted by Ms. Hagelsteen.

See also : Daniel Fasquelle, Laurent Roberval, Modernisation of the economy : The Hagelsteen report advocates the abolition of the ban on discrimination, a solution visibly taken up by the bill on the modernisation of the economy ("Negotiability of tariffs and general terms and conditions of sale"), Concurrences, N° 2-2008

In view of the reform of the Galland Act initiated in the summer of 2007 and the proposals of the Attali Commission's progress report published on October 12 of the same year, and in a context of sustained increases in the price of raw materials, the government asked me to study a new mechanism to strengthen the competitive environment of relations between suppliers and distributors with a view to encouraging greater price competition. More specifically, it was not a question of completing the reform undertaken following the recommendations of the Canivet Commission, i.e. the transition to the "triple net", a reform accomplished by the so-called Chatel Law of 3 January 2008 for the development of competition in the service of consumers, but of envisaging the introduction of freedom

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Marie-Dominique Hagelsteen, Marie-Dominique Hagelsteen (French State Council): Why negotiability?, May 2008, Concurrences N° 2-2008, Art. N° 16483, pp. 6-8

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