Several strokes of black and a palette of grays: Competitor agreements through the eyes of an enforcement agency

Competition authorities in Europe have strived to preserve the stigma attached to cartel behavior, notwithstanding recurring calls to carve out an exception for a specific sector, while making sure competition policy is in tune with evolving commercial strategies and provides answers to operators whose cooperation can ultimately yield pro-competitive results. To this end, beyond the case-by-case approach, they have made the most of administrative enforcement by developing a wealth of guidance, through guidelines or sector inquiries, which foster compliance efforts. This article aims at showing the specific experience of the French competition authority in this respect.

I. Introduction 1. An abstract painting may immediately catch the observer’s eye with its brushstrokes of black, the rich hues of gray in the background being embraced only progressively and with renewed attention. Notwithstanding, an amateur would hold, rightly, that both the sharp primary colors and the more subdued palette contribute to the overall experience of the beholder. Likewise, when it comes to competitor agreements, an enforcer will seek to balance stark messages and clear boundaries with openness to nuances and case-by-case fine-tuning. 2. Competitor agreements are amongst the favorite subjects of antitrust enforcers. They generally attract more scrutiny than non-competitor agreements, by reason of the fact that cooperation amongst competing firms directly and inevitably

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