France: Competition, Distribution And Consumer Law

Last Updated: 7 September 2015
Article by Anne-Laure-Hélène des Ylouses and Franck Veisse

On the one hand, the Macron Law provides for new procedural measures in matters of competition law, and on the other, for the distribution sector.

The procedure before the French Competition Authority (hereafter ''FCA") is subject to the following modifications:

  • Increasing powers for the inspectors of the FCA in charge of antitrust investigations

    • The Macron Bill provided that, within antitrust investigations, the FCA shall be given access to and the right to request a copy of detailed invoices and connection data stored and processed by electronic communications operators. The right to access and request a copy of connection data was invalidated by the Constitutional Council as too extensive an investigation power in the lack of legally provided guarantees to ensure the respect of privacy rights. The invalidation of this provision does not affect however the access and right to request a copy of detailed invoices by the FCA investigators within antitrust investigations.
  • The French "no-challenge" procedure becomes a "transaction" procedure

    • The current "no-challenge" procedure before the FCA will be henceforth entitled "transaction" procedure and its regime will be similar to the existing transaction procedure before the European Commission. Within this new procedural framework, companies which do not challenge the objections notified to them will be immediately informed by the FCA of the maximum amount of the proposed penalty. The maximum fine incurred will be, nevertheless, raised to 10% of the worldwide turnover of the company concerned, compared to 5% under the previous regime of the "no-challenge" procedure.
  • The modification of the certain merger control rules

    • The FCA adopts complementary dissuasive and incentive procedural instruments within the merger control regime. Like the Commission, the FCA will be enabled to "stop the clock" starting from phase 1, and not only during phase 2, what was previously the case.
    • The merger controllability thresholds will be modified for operations realised in the overseas departments and regions. From now on, for the calculation of such thresholds, the FCA will refer to the turnover realised by the concerned parties in all overseas departments and regions rather than in the sole department or region concerned by the operation.
    • The FCA may impose more stringent penalties in case of non-compliance with commitments undertaken after the authorisation of the merger.
  • The halt to the expansion of the scope of the structural injunction to the whole French territory

    • The Macron Bill intended to enlarge the scope of the structural injunction mechanism, in place since 2012 for the retail trade in the French overseas territories, to include all of France. This would have enabled the FCA to require any economic player holding a dominant position and over 50% market share to assign a part of its assets if its pricing policy raised competition concerns, in the absence of any commitments in order to overcome said competition concerns. The Constitutional Council invalidated this provision, considering that it created a disproportionate interference with property rights and business freedom. Moreover, a forced sale of assets was considered too heavy a burden on companies that have not committed any abuse. Moreover, this measure was considered disproportionate in so far as it concerned the entire country and the entire retail trade, while the legislature's objective was to address particular situations in the food retail sector.

The distribution sector is targeted by several new provisions:

  • The organisation of commercial distribution networks

    • The Macron Law aims to regulate the terms of attachment of retail stores to a distribution network in order to enhance the freedom of affiliation of retail businesses. Thus, the different types of affiliation contracts binding the retail business to a distribution network shall have a common term in order to enable the retail business to switch to another distribution network if desired. The limitation of the duration of affiliation agreements to a maximum of 9 years, adopted after the first reading by the National Assembly, was finally abandoned. This provision was approved by the Constitutional Council, which does not consider that it creates a manifestly disproportionate interference with the freedom to contract and the right to enforce legally concluded agreements.
    • The commercial relationship between a supplier and a wholesaler shall be governed by a written agreement setting the prices resulting from commercial negotiation. This agreement may take the form of a single document or a set consisting of a framework agreement and implementation agreements. This agreement must contain certain mandatory provisions. Inspired by the existing legal provisions on the obligation to conclude a single agreement in relations between suppliers and retailers or service providers, the formalism of this new obligation in the wholesale trade is nonetheless lighter.
    • Following Opinion No 15-A-06 of March 31st, 2015 of the FCA, the cooperation agreements between retailers of different distribution networks shall be communicated to the FCA within two months before their conclusion, provided that the aggregate turnover of the undertakings concerned by the agreement exceeds certain thresholds set by decree.
  • The extension of mandatory payment terms

    • The maximum payment term shall be set at "sixty days" from the date of issue of the invoice, this payment term becoming thus the maximum payment term under ordinary law. The payment term of "forty-five days end of month" becomes an exception and subject to contract, provided it is not abusive. Exceptions to the maximum payment term may be provided in certain seasonal sectors, which will be enumerated by a decree.
  • The increase of the fining threshold in case of restrictive practices

    • The civil fine incurred in case of a finding of restrictive commercial practices (sudden termination of established commercial relations, subjecting a business partner to a significant contractual imbalance etc.) provided for under article L.442-6 of the French Commercial Code, being previously capped at a maximum of two million euros, can now reach a maximum amount equivalent to 5% of the French turnover. This civil fine is in addition to the damages which may be ordered by the Court upon request of the victim of the restrictive commercial practices.

The Macron Law also aims at improving consumer information and their access to remedy in case of damage:

  • The possibility of a dual display of prices

    • Retailers have the possibility to display dual prices for the same product proposed for sale (a "usual price" and the selling price).
  • Associations' support for individual damages actions

    • The Macron Law grants consumers' associations the right not only to intervene in proceedings brought by a consumer against a professional party, but also to join as parties in a civil action for damages introduced by a consumer.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions