The European Antitrust Review 2014 Section 3: Country chapters

France: Abuse of Dominance

Article L.420-2(1) of the French Commercial Code (FCC) prohibits the abuse by an undertaking of its dominant position in a market. The prohibition set forth in article L.420-2(1) FCC and the relevant case law are broadly aligned with article 102 TFEU and its interpretation by the Court of Justice of the European Union.

Unlike EU law, French law also penalises unilateral practices by undertakings that are not strictly speaking in a dominant position when these practices have an anti-competitive object or may have an anti-competitive effect. These practices can take the form of:

  • an abuse of an economically dependent undertaking (article L.420-2(2) FCC); or
  • charging abusively low prices in relation to production, processing and marketing costs (article L.420-5 FCC).

In practice however, the success of articles L.420-2(2) and L.420-5 has been limited as the conditions for the application of the prohibition are rarely met.

Article L.420-4 FCC provides for exemptions from the offences of abusing a dominant position and abusing an economically dependent undertaking. The prohibition of abusively low prices, however, is not covered by any of the exemptions set out in article L.420-4 FCC.

The French competition authority (FCA) is responsible for enforcing these rules; its powers to investigate and sanction offences are very similar to those of the European Commission. Specific commercial courts (tribunaux de commerce)1 may also enforce these rules directly in contractual disputes and claims for damages.

It is important to note that the FCA and the courts can apply article L.420-2(1) FCC and article 101 TFEU simultaneously where practices are capable of having an appreciable effect on trade between EU member states.

Abuse of a dominant position

Article L.420-2(1)2 FCC is the French equivalent of article 102 TFEU. It prohibits ‘the abuse by an undertaking or group of undertakings of a dominant position in the internal market or a substantial part thereof’.

As in EU law, two cumulative conditions must be met for conduct to qualify as an abuse of a dominant position under article L.420-2(1):

  • the undertaking must be in a dominant position; and
  • the dominant undertaking engages in an abusive conduct that has an anti-competitive object or may have an anti-competitive effect.

Dominance

There is no statutory definition of a dominant position under French law. Nevertheless, the FCA and French courts have endorsed the definition established by the EU courts:

The dominant position thus referred to relates to a position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by affording it the power to behave to an appreciable extent independently of its competitors, its customers and ultimately of the consumers.3

In so far as a dominant position must be determined with reference to a given product or service market, a definition of the relevant market is a prerequisite to any evaluation of whether an undertaking is actually in a dominant position.

The relevant market

As a general rule, the FCA’s approach to defining the relevant market follows that of the European Commission set out in its Notice on the definition of the relevant market.4The main test for delimiting a market is demand-side substitution (ie, whether or not customers consider the various products or services that comprise the market as substitutable). This analysis has been confirmed on multiple occasions by the Paris Court of Appeal5 and the French Supreme Court (Cour de cassation).6

More rarely, the FCA may take into account the supply conditions of products or services as part of its assessment of the relevant market. For example, the FCA may sometimes take supply-side substitutability (ie, whether it is possible for a supplier to adjust its production methods to replace a competing supplier) into account.7

Dominant position

The traditional starting point for assessing whether an undertaking is in a dominant position is to calculate its market share. Like the European Commission and European courts, the FCA generally considers a market share of more than 50 per cent as a strong indicator of a dominant position.

However, market share is not the only factor (save where the undertaking has a monopoly) and is not always sufficient. For example, in one past decision, the FCA held that it could not be ruled out that an undertaking was in a dominant position even though its market share was only 24 per cent.8

Other criteria applied by the FCA to evaluate dominance include, inter alia:

  • the difference in market shares between the leading undertaking and its competitors;
  • the economic structure of the market and, in particular, the intensity of competition in the market and the ability of competitors to enter the market (existence of barriers to entry);
  • the market leadership of the undertaking (eg, brand image); and
  • a specific competitive advantage (eg, commercial organisation, diverse product range, know-how, etc).

Collective dominant position

Article L.420-2(1) FCC applies to the conduct of undertakings acting alone or as a group. French case law applies the concept of collective dominance in step with European Commission practice.

The FCA generally combines the traditional criteria based on structural links (in particular, capital or contract-based links) with the collective dominance test developed in the ECJ judgment in Airtours9 (see, for example, Asphalt Mixes10 and Supply and Distribution of Cement in Corsica).11

Abusive conduct

Under French law, as in EU law, it is not in itself illegal for an undertaking to be in a dominant position. However, dominant undertakings have a special responsibility not to allow their conduct to impair genuine undistorted competition on the market. This means that dominant undertakings can be prohibited from engaging in behaviour that would be acceptable for smaller rivals.

There is no definitive list of abusive conduct – and this will depend on the facts of the case – but article L.420-2 FCC sets out a non-exhaustive list of examples, including:

  • refusal to supply;
  • tied sales, where a supplier of product A requires a customer of that product to also buy product B from it;
  • discriminatory sales conditions; for example, charging different prices to different customers or different categories of customers (such as small, medium and large corporates) for the same service where those differences do not reflect quality, quantity or other costs. This could include giving customers different discounts based on whether or not they also purchase from the dominant company’s competitors; and
  • termination of a commercial relationship on the sole ground that a business partner refuses to accept unjustified conditions.

Case law has provided numerous other examples, including:

  • loyalty or bundled rebates;12 for example, giving customers discounts that are conditional on those customers buying all or a large proportion of their overall purchases from the same company or on buying several categories of products or volume discounts operating retrospectively. This also includes forcing customers to make long-term purchasing commitments or only agreeing to supply services if the customer commits to purchasing all services from the same company;
  • predatory pricing,13 traditionally defined along the lines of the EC Akzo test,14 in which a price will be considered predatory if it fails to cover the average variable costs (or fails to recover the average total costs and there is evidence of an intent to predate);
  • refusal to deal or to grant access to essential facilities;15and
  • exclusive dealing, non-compete provisions and single branding.16

The FCA requires evidence of a causal link between the dominant position and the abuse.17 It is worth noting, however, that the dominant position and the abuse do not need to occur in the same market.18

Exemptions

Pursuant to article L.420-4 FCC, practices that would normally qualify as an abuse of a dominant position may be exempt from sanctions in the same manner as anti-competitive agreements. Exemptions are assessed on a case-by-case basis and granted in the following circumstances:

  • the infringing practices are the result of the application of a law or regulation;19or
  • the abusive practice ensured economic progress,20 or created or protected employment.

It is, however, extremely rare for the FCA or a French court to grant an exemption based on article L.420-4 FCC.

Recent high-profile cases

Railway freight sector (SNCF)21

In this decision, the FCA imposed a fine of €60.9 million on SNCF, the national incumbent railway operator, for abusing its dominant position in the railway freight market in France and issued it with an injunction to modify its business practices.

The practices sanctioned by the FCA in its decision were as follows:

  • through its position of delegated infrastructure manager in charge of traffic management and technical safety maintenance of the network infrastructure, SNCF had gathered sensitive and confidential information on the strategy and business behaviour of its competitors and used it in its own commercial interest; and
  • SNCF had been preventing its competitors from accessing rail capacities that were essential to their business by hindering access to freight yards and overbooking train paths and specific wagons that are used for large tonnage transportation.

A third practice consisted in pricing below cost to selected clients by which, according to the FCA, SNCF aimed to artificially delay competition in the market. It is worth noting that the FCA’s analysis was in step with the Post Danmark22 judgment issued by the European Court of Justice. The prices charged were below the average total costs but above SNCF’s average incremental costs. The FCA therefore considered that the practice was likely to prevent competitors as efficient as SNCF from entering the market or make their entry more difficult.

With regards to this last practice, the FCA did not impose a fine but did issue an injunction against SNCF obliging it to set up an analytical accounting system within 18 months that would accurately identify the costs incurred by its freight business; and to set its prices at a level that covers its average avoidable costs within three years.

Plavix (Sanofi-Aventis)23

Following a complaint from generic drug manufacturer Teva Santé, the FCA found that Sanofi-Aventis had abused its dominant position in the French market by disparaging generic versions of Plavix, one of the world’s best-selling drugs, with the goal of limiting their entry into the market and favouring Sanofi-Aventis’s own products.

According to the FCA, the purpose of this communication strategy was to influence doctors and pharmacists to stop or reduce the generic substitution process at the prescription stage, by convincing doctors to mark their prescriptions ‘non-substitutable’ and thus limit the substitution of Plavix with a generic medicine; and at the substitution stage itself, by encouraging pharmacists to substitute its own generic medicine Clopidogrel Winthrop for Plavix, to the detriment of generic competitors.

The FCA considered the identified practices to be particularly serious, thoroughly justifying the €40.6 million fine imposed on Sanofi-Aventis.

Abuse of an economically dependent undertaking

Article L.420-2(2) FCC24 aims to address the conduct of undertakings that do not necessarily hold a dominant position on a given market but may nonetheless be tempted to take advantage of the economic dependence of their customers or suppliers.

In order to apply this provision, the FCA or the courts must establish that the customer or supplier is in a position of economic dependence and that an abusive practice has been implemented and had an anti-competitive impact on the market.

Position of economic dependence

In past decisions of the FCA and the French courts, the following criteria are taken into account to assess whether an undertaking A is in a position of economic dependence on a second undertaking B, which can be an upstream or downstream market player:25

  • the reputation of B;
  • the market share of B;
  • the share of A’s turnover generated via B, provided that this is not due to a deliberate business policy applied by A; and
  • the degree of difficulty of obtaining equivalent products or services from undertakings other than B.

These criteria are cumulative and are, in practice, rarely met. To our knowledge, there have only been two instances over the last 10 years in which the FCA ordered fines for an abuse of an economically dependent undertaking.26

It is worth noting that the party claiming to be in a position of economic dependence bears the burden of proof.27

Implementation of an unlawful practice with an anti-competitive market impact

Article L. 420-2(2) FCC provides that the unlawful practices that can be penalised under this heading ‘may consist in a refusal to supply, tying, the discriminatory practices referred to in part I of article L. 442-6, or in bundling agreements’. This list is not exhaustive and may also include most of the practices already examined as abuses of a dominant position (see above).

For example, the unlawful termination of a business relationship has been qualified as an abuse of economic dependence when it is done suddenly and without any objective justification.28 The same can also apply to a clause producing anti-competitive effects or to disproportionate and unjustified obligations imposed on a dependent undertaking.

Lastly, to apply article L. 420-2(2) FCC, the FCA or the court must establish that the practice in question is capable of disrupting the normal operation of the market to an appreciable extent.

Exemptions

The exemptions set out in article L.420-4 FCC can also apply to abuses of an economically dependent undertaking and may be granted under the same conditions as for an abuse of a dominant position (see above).

Recent high-profile cases

Retail distribution (Carrefour)29

Further to a complaint filed by two Carrefour franchisees operating supermarkets in Paris, the FCA notified Carrefour of competition concerns relating to the replacement of the complainants’ franchise agreements by a new agreement with more restrictive conditions.

The FCA’s concerns referred in particular to amendments to the franchise agreements that include:

  • a longer affiliation term (seven years instead of three);
  • the introduction of a post-contractual non-reaffiliation and non-compete clause;
  • the introduction of a post-contractual preferential right for Carrefour to take over the franchised business; and
  • the introduction of a franchise fee with deferred payment.

In response to the competition concerns raised by the FCA, and to end the proceedings, Carrefour opted to make commitments that mainly consisted in making the disputed clauses less restrictive.30 The FCA subsequently accepted the commitments and ended the proceedings.

Abusively low prices

Article L.420-531 prohibits abusively low prices or price offers. Unlike abuses of a dominant position and of economic dependence, abusively low pricing practices cannot be exempted on the basis of article L.420-4 FCC.

The prohibition is triggered if the following three conditions all apply:32

  • the price in question is a price to consumers;
  • the prices offered are lower than the production, processing and marketing costs; and
  • the prices charged express an intent to exclude a competitor or its product from the market, or may have the effect of doing so.

It is important to note that implementation of article L.420-5 provisions on abusively low pricing is not restricted to situations involving a dominant position. This is a difference between article L.420-5 and article L.420-2(1), which governs predatory pricing by undertakings in a dominant position.33

Consumer sales

The article L.420-5 prohibition only applies to sales aimed at consumers, which means there are two limits on its scope.

To begin with, the addressee of the offer or sale of products and services must be a ‘consumer’, defined in case law as ‘an individual or legal entity having no particular experience in the field in which it is entering into an agreement, and who or which is acting to meet personal needs and using the acquired product or service exclusively for such purpose.’34On the basis of this decision, the FCA has held that government or government-owned entities cannot be considered consumers because they are acting to meet the personal needs of users, rather than their own.35

Second, the prohibition of abusively low prices does not apply when products are resold in as-is condition, with the exception of sound and video recordings (ie, disks, cassettes, etc). It only applies to the sale of products that have undergone thorough processing while in the seller’s keeping. Generally speaking, the French authorities consider any action taken by the distributor that modifies the presentation of a product before it is sold to consumers to constitute thorough processing.36

Abusively low prices or offers

Actual or offered prices must be ‘abusively low’ in comparison to their production, processing and marketing costs in order to be prohibited.

The legal definition of an abusively low price does not expressly refer to the concept of predatory pricing. However, the French authorities take the view that the same principles as for predatory pricing should be used to determine whether a price is ‘abusively low’ within the meaning of article L.420-5.37

In direct continuation from EU case law in Akzo,38 the FCA considers prices to be abusively low where the price is lower than the offeror’s total costs or its average variable costs; and the price is a part of an anti-competitive exclusionary strategy.

We should, however, point out one difference with the Akzo test: when article L.420-5 is applied to an undertaking that is not in a dominant position, charging a price that is lower than the variable cost of the product or service in question is not automatically presumed to be abusive but simply constitutes one indication of an exclusionary strategy, which must be supported by further evidence.39

Anti-competitive and exclusionary intent/potential effect

In accordance with article L.420-5 FCC, abusively low pricing practices are only subject to fines if they ‘have as their object or possible effect excluding an undertaking or product from a market or preventing access by an undertaking or one of its products to a market’.

On this front, the FCA has insisted40 that a risk of anti-competitive exclusion must be evaluated based on the differences in resources between the distributor engaging in the low-pricing strategies and its competitors. This difference in resources may involve:

  • the distributors’ respective financial capacities, in particular if one is part of a group of companies capable of absorbing the losses incurred from setting low prices;
  • their respective sales forces, especially if one has multiple sales outlets distributed over the entire territory, enabling it to offset losses borne in one shop by way of the business in others; or
  • the business structure, especially where one competitor’s turn-over is diversified and allocated over several product categories.

Lastly, only low prices that are sufficiently wide-ranging and permanent can potentially be characterised as abusive, because it can be concluded in such cases that the prices are part of an overall strategy aimed at luring away a competitor’s customers.41

Recent high-profile cases

Google/Bottin Cartographes42

In this case, the Paris Commercial Court ordered Google to pay Bottin Cartographes €500,000 in damages for predatory pricing on the market for web-based mapping.

Google was criticised for having applied abusively low prices in infringement of article L.420-5 FCC and for having abused its dominant position on the web-based mapping market in breach of article L.420-2(1) by providing publishers of web sites and applications with interactive maps that were similar to those of Bottin Cartographes, free of charge.

In its decision, the Commercial Court held, however, that the conditions for implementing article L.420-5 FCC had not been satisfied because customers of Bottin Cartographes – which are companies – are not the end users of the mapping services.

Nevertheless, the Commercial Court did find in favour of the claim that Google had abused its dominant position. The quantum of damages awarded to Bottin Cartographes was set on the basis of turnover lost from certain customers choosing to switch from Bottin Cartographe’s service to the free option offered by Google.

Remedies

Injunctions and fines

Under article L.464-2(I) FCC, where the FCA finds that an undertaking or legal entity has abused its dominant position, another party’s state of economic dependence, or set abusively low prices, it may issue a reasoned decision:

  • obliging the parties to stop engaging these anti-competitive practices within a specified period; or
  • ordering the undertakings or legal entities in question to pay a financial penalty either immediately or if they do not comply with the injunctions.

When the FCA decides to impose a fine, the FCC provides that the amount must be in proportion to the seriousness of the facts, the extent of the harm done to the economy, the circumstances of the sanctioned entity or undertaking or of the group to which the undertaking belongs, and to the repeated of the practices, if relevant.43

The maximum fine is:

  • for a company, 10 per cent of its group worldwide turnover; and
  • for entities other than companies (such as public bodies or natural persons), €3 million.

It should be noted that the FCA has adopted fining guidelines that explain the method it uses when issuing fines in order to make its actions more transparent.44

Commitments

The FCA is empowered to accept voluntary commitments negotiated with undertakings where such commitments remove the competition concerns identified by the FCA. If the commitments are accepted by the FCA, the competition proceedings end before any finding of an infringement.

If commitments are not satisfied, the FCA can order penalties against the undertaking for its failure to fulfil its commitments.

In practice, the commitments procedure has been a great success since it was introduced into French law.45 Over the last five years, approximately two-thirds of cases pertaining to abusive practices have been resolved through the commitments procedure (21 cases out of 33 in total).

Scope

As the FCA stated in its 2 March 2009 Notice on Competition Commitments,46 the commitments procedure is not available in the most serious cases of abuse of a dominant position that significantly harm the economy; fines should be handed down in such instances.

Type of commitments

For commitments to be accepted, the FCA requires that they be relevant, credible and verifiable.47

In light of the FCA’s past decisions, the most frequent commitments submitted by undertakings – and accepted by the FCA – fall under one of four categories:

  • modifications of contractual clauses (eg, exclusivity provisions, non-compete obligations, etc).48
  • establishment of transparent, objective selection criteria;49
  • allowing access to the information and resources necessary to the business of competing suppliers in a particular industry;50and
  • separation (eg, organic, accounting, etc) between the public service missions and the commercial activities of an operator in a dominant position, in order to better monitor exclusionary practices and margin squeezing.51

It should be noted that in addition to the above types of commitment, it is common for undertakings to offer to set up a programme for competition law compliance.52

Recent examples of use of the commitments procedure

In a recent case, Fédération Française de Golf (FFGolf),53the FCA held that the systematic inclusion of two non-mandatory insurance products in the golf licences issued by FFGolf could qualify as ‘tied sales’ preventing other insurance suppliers from accessing the market for non-mandatory insurance products for golfers. The FCA therefore considered that this practice could constitute an abuse of its dominant position on this particular market.

In response to the FCA’s concerns and to resolve the proceedings brought against it, FFGolf submitted proposals for commitments that were accepted by the FCA. FFGolf undertook to:

  • unbundle the sale of two non-mandatory additional insurance products from the sale of the licence for the purchase of any new 2013 licence and for the following seasons. The two insurance products would become optional and subject to an additional fee from 2013;
  • modify any of its communications tools that could lead to the risk of confusion, such that the additional insurance products proposed by the FFGolf cannot be taken out by golf clubs for the benefit of their players;
  • modify its contractual practices with golf clubs accordingly; and
  • modify its promotional campaign that consists of offering unlicensed players, free of charge, insurance products (‘Cap 500,000 licenses’ programme), for the purposes of making insurance optional and fee-based.

In PagesJaunes,54 the FCA concluded that certain practices engaged in by PagesJaunes with advertising agencies that were in competition with its own advertising service could potentially restrict competition in the market for the sale of advertising space in directories. These practices included refusing third-party agencies access to statistical data and disparagement.

In response to the FCA’s concerns and to resolve the situation, PagesJaunes undertook to:

  • provide agencies with the same statistics on advert viewing as those provided to PagesJaunes sales staff;
  • continue the rollout of the software used to calculate advert insertion tariffs to third-party agencies;
  • establish an external communications plan aimed at informing advertisers of the existence and role of advertising agencies; and
  • establish a compliance programme.

The FCA held these commitments, which were made for a period of three years, to be relevant, credible and verifiable, and thus approved them. It concluded that the agencies would be treated in the same way as the PagesJaunes internal advertising service and would therefore be in a position to compete effectively with that internal service.

Lastly, in Press distribution (Presstalis),55 the FCA issued competition concerns relating to several provisions of the contracts governing the relationship between Presstalis and independent press wholesalers that could constitute an abuse of dominant position.

In response to the FCA’s concerns, Presstalis proposed to make a number of commitments, which were accepted. Presstalis undertook:

  • not to terminate contracts between Presstalis and press wholesalers that directly distribute a publisher’s titles unless it could demonstrate that such direct distribution affected the performance of the distribution services provided by the press wholesaler to Presstalis;
  • not to terminate any press wholesaler contract without giving three months’ notice, except in cases involving a material breach by the wholesaler; and
  • to inform press wholesalers that have concluded or may conclude a contract with Presstalis of these commitments.

Notes

  1. Competent courts are the following: Marseille, Bordeaux, Lille, Fort-de-France (Martinique), Lyon, Nancy, Paris and Rennes. Appeals against the rulings of these courts are brought before the Paris Court of Appeal.
  2. Article L.420-2(1) FCC reads as follows: ‘The abuse by an undertaking or group of undertakings of a dominant position in the internal market or a substantial part thereof shall be prohibited in accordance with the conditions specified by article L.420-1. These abuses may in particular consist of refusals to sell, linked sales or discriminatory conditions of sale and the severance of established commercial relations solely because the partner refuses to submit to unjustified commercial conditions.’
  3. See in particular ECJ, 14 February 1978, case C-27/76, United Brands, and 13 February 1979, case C-85/76, Hoffmann-La Roche.
  4. Commission Notice No. 97/C372/03 of 9 December 1997 on the definition of relevant market.
  5. See in particular CA Paris, 19 May 1998, France Télécom et Transpac.
  6. See in particular Cass. com., 22 May 2001, appeal No. 99-14.716, Sté routière de l’est parisien and Cass. com., 13 July 2010, appeal No. 09-67.439, Vedettes inter-îles vendéennes.
  7. See CA Paris, 19 May 1998, France Télécom; decision No. 93-D-56 of 7 December 1993, Bandaï; opinions No. 00-A-11 of 6 June 2000 and No. 01-A-08 of 5 June 2001.
  8. Decision No. 06-D-26 of 15 September 2006, Yamaha.
  9. CFI, 6 June 2002, case T-342/99, Airtours v Commission.
  10. Decision No. 06-D-02 of 20 February 2006, Asphalt mixes.
  11. Decision No. 07-D-08 of 6 March 2007, Supply and distribution of cement in Corsica.
  12. See, in particular, decisions No. 96-D-12 of 5 March 1996, Lilly France; No. 00-D-67 of 13 February 2001, Sale of visual advertising space; No. 03-D-35 of 24 July 2003, Sandoz; No. 04-D-13 of 8 April 2004, Roquefort; No. 04-D-65 of 30 November 2004, La Poste; No. 05-D-13 of 18 March 2005, Pay-TV; No. 07-D-08 of 12 March 2007, Supply and distribution of cement in Corsica; No. 07-D-28 of 13 September 2007, Le Havre port authority; No. 09-D-04 of 27 January 2009, Messageries Lyonnaises de Presse; and No. 11-MC-01 of 12 May 2011, Kiala.
  13. See, in particular, decisions No. 00-D-50 of 5 March 2001, Française des Jeux; No. 04-D-17 of 11 May 2004, AOL; No. 05-D-13 of 18 March 2013, Pay-TV; No. 07-D-09 of 14 March 2007, GlaxoSmithKline; No. 07-D-39 of 23 November 2007, Eurostar; No. 12-D-04 of 23 January 2012, Météo France; and No. 11-MC-01 of 12 May 2011, Kiala.
  14. CA Paris, 8 April 2008, Laboratoire GlaxoSmithKline, appeal No. 2007/7008.
  15. See, in particular, decisions No. 97-D-69 of 23 September 1997, SARL Heli-Inter Assistance; No. 05-D-59 of 7 November 2005, France Télécom; No. 06-D-35 of 21 November 2006, MGE UPS Systems; No. 07-MC-05 of 11 July 2007, towerCast; No. 08-D-04 of 25 February 2008, NMPP and No. 11-MC-01 of 12 May 2011, Kiala and opinion No. 02-A-08 of 22 May 2002.
  16. See in particular decisions No. 04-D-13 of 8 April 2004, Roquefort; No. 06-D-06 of 17 March 2006, Gîtes de France; No. 07-D-44 of 11 December 2007, GIE Ciné Alpes; No. 07-MC-01 of 25 April 2007, KalibraXE; and No. 08-D-16 of 3 July 2008, Photomaton.
  17. Decision No. 05-D-70 of 19 December 2005, BVHE France (upheld by the Court of Appeal and the Supreme Court).
  18. Decision No. 00-D-50 of 5 March 2001, Française des Jeux (upheld by the Court of Appeal and the Supreme Court). See also Cass. com., 7 January 2004, Sté 4D.
  19. CA Paris, 27 June 1990.
  20. Cass. com., 4 May 1999, Nikon; CA Paris, 15 November 2005, TPS.
  21. Decision No. 12-D-25 of 18 December 2012.
  22. ECJ, 27 March 2012, case C-209/10.
  23. Decision No. 13-D-11 of 14 May 2013.
  24. Article L.420-2(2) prohibits ‘the abuse by an undertaking or group of undertakings of the state of economic dependence in which a customer or supplier undertaking finds itself in respect of the above [...] when it is likely to affect the operation or structure of competition. These abuses may in particular consist of refusals to supply, tied sales or the discriminatory practices referred to in article L.442-6(I) or bundling agreements’
  25. Cass. Com., 9 April 2002, No. 00-13921, Sté Sintel; decisions No. 07-D-14 of 2 May 2007, Transmontagne; No. 04-D-44 of 15 September 2004, Ciné-Théatre du Lamentin; No. 04-D-26 of 30 June 2004, SARL Reims Bio; No. 02-D-77 of 27 December 2002, SA Daniel Grenin; and No. 12-D-11 of 6 April 2011, Roland Vlaemynck Tisseur.
  26. Decisions No. 04-D-26 of 30 June 2004, SARL Reims Bio and No. 04-D-44 of 15 September 2004, Ciné-Théatre du Lamentin. A third case was resolved through commitments: decision No. 11-D-20 of 16 December 2011, Retail distribution.
  27. Cass. Com., 12 January 1999, No. 96-21644, Sté Del Prete.
  28. Decisions No. 04-D-26 of 30 June 2004, SARL Reims Bio and No. 04-D-44 of 15 September 2004, Ciné-Théatre du Lamentin.
  29. Decision No. 11-D-20 of 16 December 2011.
  30. These mainly involved loosening the terms of the contested clauses, amongst other things by reducing the initial contract term to 3 years and by removing all post-contractual non-reaffiliation and non-compete clauses.
  31. Article L.420-5 prohibits ‘price offers or sale prices to consumer that are excessively low in relation to production, processing or market costs, if these offers or prices have as the object or possible effect of excluding an undertaking or product from a market or preventing access by an undertaking or one of its products to a market [...]’.
  32. Decision No. 06-D-23 of 21 July 2006, Map publishing.
  33. Decision No. 04-D-10 of 1 April 2004, UGC Ciné-Cité.
  34. CA Paris, 3 July 1998; for a recent application of this notion see decision No. 08-D-01 of 18 January 2008, Sté Ségard.
  35. Decision No. 07-D-38 of 15 November 2007, Industrial bakery.
  36. The following, for example, are considered as involving actual processing: cooking and cutting foodstuffs; preparing meat, cold cuts or fish, even if only by cutting, slicing, or trimming; washing products, if the purpose is not restricted to merely cooling the product and if it modifies the appearance of the product; reconditioning of a product that is not restricted to labelling or shelving.
  37. See, in particular, opinion No. 97-A-18 of 8 July 1997; decisions No. 00-D-54 of 25 July 2000; No. 07-D-44 of 11 December 2007 and No. 08-D-01 of 18 January 2008.
  38. EJC, 3 July 1991, case C-62/86, Akzo.
  39. Decision No. 02-D-66 of 6 November 2002, Syndicat français des assureurs conseils.
  40. Opinion No. 97-A-18 of 8 July 1998.
  41. Opinion No. 97-A-18 of 8 July 1998.
  42. T. com. Paris, 31 December 2012, Bottin Cartographes v Google France, Google Inc. Google has appealed the decision before the Paris Court of appeals and the appeal is pending.
  43. Article L.464-2 (I) FCC.
  44. Notice on the Method Relating to the Setting of Financial Penalties of 16 May 2011.
  45. The commitments procedure was introduced into French law by order No. 2004-1173 of 4 November 2004, adapting certain provisions of the French Commercial Code to EU competition law.
  46. Notice on Competition Commitments Issued on March 2nd, 2009, para. 11.
  47. Notice on Competition Commitments Issued on March 2nd, 2009, para. 21.
  48. See in particular decisions No. 07-D-30, TV broadcasting services; No. 07-D-17, Online sale of cosmetic products; No. 09-D-32, Photomaton; No. 10-D-18, Bio Vet; No. 10-D-27, Distribution of tires in France; No. 11-D-08, Access to MRI at the hospital of Arcachon; No. 11-D-20, Retail distribution; and No. 12-D-16, Press distribution.
  49. For access to a selective online distribution network: decisions No. 07-D-07, Online sale of cosmetic products; No. 06-D-28, Selective distribution of Hi-fi and home cinema equipment; and No. 06-D-24, Bijourama; for the right to be included on a list of recognised experts: No. 09-D-01, Pleasure craft; for an entitlement to certain price terms: No. 10-D-06, Sté des Téléphériques de la Grande Motte; for entering into services agreements: No. 10-D-27, Distribution of tires in France; for the right to receive subsidies: No. 10-D-18, Bio Vet.
  50. See in particular decisions No. 08-D-04, NMPP; No. 07-D-31, Car repair; No. 06-D-20, Directory assistance via telephone and Internet; No. 05-D-25, Postage stamp valuation catalogues; No. 08-D-04, Sanitation works in the village of Pontacq; No. 11-D-18, Access to MRI at the hospital of Arcachon; and No. 12-D-22, Advertising in directories.
  51. See in particular decisions No. 08-D-34, Funeral services in Marseille; No. 11-D-14, Funeral services in the west of France and No. 12-D-04, Météo France.
  52. See in particular decisions No. 10-D-29, Household plastic packaging waste treatment; and No. 12-D-22, Advertising in directories.
  53. Decision No. 12-D-29 of 21 December 2012, Fédération Française de Golf.
  54. Decision No. 12-D-22 of 22 November 2012, Advertising in directories.
  55. Decision No. 12-D-16 of 12 July 2012, Press distribution.

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