France: Competition News - December 2015

Last Updated: 31 December 2015
Article by Emmanuelle van den Broucke and Sara Pomar

The French Competition Authority recalls that a resale price mentioned publicly is not necessarily an imposed resale price

The French Competition Authority inaugurated December with a non-suit concerning an alleged unlawful agreement on resale prices between a supplier and its distributors.

The novelty of this case resides in the fact that the prices in question were simply mentioned by the supplier during a press conference. To mark the launch of its Wii console on the European market, Nintendo organized a press conference in London, during which the president of the group made several announcements in English on the sale prices of the Wii console indicating that the "estimated" sale price of the new console was €249.

At the stage of the preliminary investigation, the Authority's investigating service considered that these practices could constitute resale prices imposed by Nintendo, and they sent a statement of objections in this respect to Nintendo.

However, the Authority did not follow its case-handlers. In its decision of December 1, 2015, the Authority first recalled that proof of such unlawful agreement on prices, in the absence of clear contractual clauses signed between the parties to the distribution agreement, results from precise serious and concordant items of evidence including:

  • The mention between the supplier and its distributors of the resale prices of the products to the public;
  • The implementation of a policy or at least monitoring on these prices; and
  • The observation that the prices mentioned were actually applied by the distributors.

Concerning the first condition, i.e. mentioning the prices, the Authority pointed out that this includes all forms of communication likely to be used by a supplier to inform its distributors of the recommended sale prices. Thus, in this case, this condition is met, according to the Authority, since the announcements made by the group's president at the press conference, and relayed in France by Nintendo's European website and by the French press, did concern the French market and were intended to inform the distributors of the recommended retail sale prices.

However, the Authority dismissed the existence of an anticompetitive practice in the absence of proof concerning the second condition relating to the monitoring by the supplier of the resale prices charged.

Although in the end, Nintendo was not held liable in this case, the fact remains that this decision shows that mentioning resale prices is interpreted in an extremely broad manner by the Authority and that the first condition for a vertical unlawful agreement on prices is very easily met. Although suppliers can unquestionably mention the resale prices, they have to be very vigilant in ensuring that these prices remain merely mentioned and not monitored.

France continues its fight against late payments between companies

French legislation has always been particularly active in the fight against late payments between companies, because of the significant prejudice which results therefrom for these companies' cash flow and potentially their survival.

In this respect, Article L.441-6 of the Commercial Code imposes a legal payment maximum of 60 days after the invoice date or, subject to certain conditions, 45 days after the end of the month of invoicing. This deadline must be respected by the purchaser under penalty of fines up to €375,000. It is precisely in accordance with this Article that the DIRECCTE of several regions recently imposed a fine on Numericable (€375,000), SFR (€375,000), Paul Predault (€100,000), Airbus Helicopters (€375,000) and COMASUD (€87,900) for delays in the payment of their suppliers' invoices. By making these fines public, the Minister of Economy is seeking to create an additional deterrent effect.

However, these delays are constantly increasing according to the Ministry of Economy which announced several measures at the end of November, including notably the increase of the maximum fine incurred by later payers to €2 million.

A decree was also issued on November 27, 2015, modifying the Commercial Code to make the information drawn up by companies with regard to payment terms more transparent and to allow the administration to identify the bad payers more easily.

The French Competition Authority sanctions SFR's abusive differences in price

Since 2008, the prohibition as a principle of discriminatory practices between professionals has been abolished in France. For a price discrimination to be sanctioned under competition law, it has to constitute either an abuse of a dominant position or an unlawful agreement.  

In its decision of November 30, 2015, the Competition Authority illustrated this by fining SFR and its subsidiary in La Réunion SRR €10.7 million for having implemented an abusive difference in price between calls made to other clients of its network ("on net" calls) and those, priced higher, to competing networks ("off net" calls), without this difference having any economic justification.

To base its decision on the provisions relating to the prohibition of abuses of a dominant position, the French Competition Authority first established the existence of SFR's leading position on the non-residential (professional) mobile telephony markets in La Réunion and Mayotte.

The Authority then noted that SFR commercialized on these markets offers including difference prices between on net and off net calls, so as to disadvantage off net calls, significantly more expensive than on net calls, without such difference in price being justified by the costs relating to each type of call.

According to the Authority, the difference in price becomes abusive "when this difference in price exceeds the difference in cost borne by the dominant operator". In this case, the differences in price in La Réunion were up to 10 times higher than the differences in cost, and in Mayotte they were three times the differences in cost.

To conclude that the practice in issue was abusive, the Authority finally noted the existence of anticompetitive effects on the professional mobile retail market due to the incentive resulting therefrom for companies to subscribe to SFR to maximize the chances of being able to call and be called at attractive prices. Moreover, the Authority pointed out that these practices had tarnished and degraded the reputation of SFR's competitors making them appear to have more expensive offers.

Accordingly, despite their freedom to set prices recovered in 2008, economic operators often remain required to justify economically their policy of difference in price since beyond the present case founded on the law on anticompetitive practices, the difference can be sanctioned on other grounds such as that of restrictive practices.

The ECJ rules that a clause limiting the freedom of the lessor of a shopping center to rent premises to competitors is not anticompetitive per se

The Latvian competition authority had sanctioned Maxima Latvija, a local player in food distribution, for having inserted in its 112 lease agreements for the rental of premises in shopping centers, a clause pursuant to which it could, as reference tenant, object to the rental by the lessor of premises to other tenants, including potential competitors. A preliminary ruling was requested by the Latvian authorities from the European Court of Justice to know whether this clause was prohibited per se, regardless of its effects on the market.

In its decision of November 26, 2015, the ECJ considered that given the economic context surrounding these agreements and the terms of these agreements, they did not present a sufficient degree of "harm" with regard to competition to restrict competition by their very nature.

The review of the restrictive nature of the agreement therefore had to be conducted with respect to its effects on the market. The ECJ indicated that the legal and economic circumstances of the case at hand had to be taken into account. In this case, this meant assessing all the factors which determine access to the market, and particularly whether, in the catchment areas where the shopping centers which are covered by those agreements are located, there are real concrete possibilities for a new competitor to establish itself. The conditions under which competitive forces operate on the reference market must also be assessed (such as the number and size of operators, the degree of concentration and customer fidelity to existing brands).

The Court concluded that the agreements in issue are only anticompetitive if they contribute significantly to closing-off the market, depending on the position of the contracting parties and the duration of the agreement.

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

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

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”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.