France: Competition News - February 2016

Last Updated: 8 March 2016
Article by Emmanuelle van den Broucke and Sara Pomar

Refusing to settle in the case of local anticompetitive practices is not necessarily the right decision

As might be expected, the decision handed down by the French Competition Authority on January 17, 2016 regarding a cartel between seven companies in the context of public contracts for school transport in the Bas-Rhin region, is a good example of why companies should really think twice before refusing to negotiate with the DIRECCTE (Regional Directorate for companies, competition, consumer affairs, labor and employment).

Since 2008, the Minister of Economy (through the DGCCRF (General Directorate for competition, consumer affairs and prevention of fraud), and locally the DIRECCTE) is responsible for settling local anticompetitive practices involving SMEs to allow the French Competition Authority to concentrate on the most important cases. In this respect, the Minister can notably order the companies involved to cease their practices and conclude settlements with them which imply a financial sanction.

In the case at hand, the matter was referred to the Minister in 2012. He noted that the companies had formed a consortium allowing them to share the market so that each of them kept the transport lines that they historically operated. In 2014, he proposed a settlement to the seven companies. Only three of them accepted, for amounts ranging from €34,000 to €75,000.

For the four remaining companies, the Minister was therefore obliged to refer the case to the French Competition Authority which confirmed the Minister's analysis and ordered the four companies to pay fines ranging from €20,000 to €96,000.

This was the first decision to be made by the Authority after failure of a local settlement and there are several lessons to be learned regarding the advisability of refusing a settlement proposed by the Minister. The company may want to refuse for two possible reasons: in order to object to the existence of the infringement or to obtain a lesser fine than under the settlement proposed by the Minister.

With regards to the existence of the infringement, it should be noted that, until now, the Minister has seemed to limit himself to finding practices which are clearly anticompetitive, in view of the Competition Authority's decision-making practice. Moreover, it seems, as in the case at hand, to take a particular interest in cartels concerning responses to calls for public tenders. Consequently, an appeal before the Authority to challenge the existence of an infringement seems doomed to failure, as was the case here.

With regards to the amount of the fine, once again, it seems to be of limited interest. On the one hand, the settlement amount proposed by the Minister cannot exceed €150,000. Moreover, in the case at hand, the sanctions imposed by the Authority correspond to the settlement amounts proposed and given the extension and cost of proceedings, it seems illusory to believe that going before the Authority would allow the company to reduce the overall cost.

Finally, the possibility of private enforcement proceedings must be considered. The decisions of the Competition Authority are widely published, and companies can also be ordered to publish a summary of the decision in the press, which is the case here. Furthermore, they constitute res judicata. On the contrary, the Minister does not take fining decisions but enters into simple settlements containing a somewhat limited summary of the facts. The action before the Authority therefore seems to increase the chances of liability claims being made by competitors or clients.

This case therefore shows that the utmost caution should be taken when it comes to deciding whether or not to accept a settlement proposed by the Minister. Only the case of a clear error by the Minister (regarding the principle of the infringement or the amount of the settlement) seems to justify the risk of appearing before the French Competition Authority.

French merger control: final acquisition of exclusive control in a multistage transaction is only taken into account if it is certain and takes place in the near future

In a decision of December 21, 2015 concerning a merger in the tire and automobile accessories sector, the French Competition Authority analyzed the case of a multistage merger: in the initial stage, the Simon group will acquire 51% of the Chouteau group's shares. Between March 31 and June 30, 2017, the activities of the two groups will be combined and the Simon group will own an 83% holding in this new group. Between January 1, 2023 and January 1, 2033, the Simon group will finally acquire full control.

With regards to the first two stages, and by virtue of a shareholders agreement negotiated between the two partners, the minority shareholder, Chouteau, will have strategic veto rights allowing it to exercise joint control over the concerned activities. The question was then whether these two intermediate stages should be ignored and it be considered that the Simon group already has exclusive control, given the third stage. Such a qualification can be important for the calculation of the notification thresholds as the qualification of joint control can trigger thresholds which would not be fulfilled in the case of exclusive control being acquired. Moreover, if the Authority directly takes into account the final stage, it would not be necessary for the parties to once again notify thereof upon the change from joint control to exclusive control.

In the case at hand, the Authority considered that the first two stages are not temporary and that the activities being pooled will be jointly controlled in the long term.

The Authority applied the consolidated Commission Jurisdictional Notice, which sets forth two conditions in order to assess whether a temporary transaction constitutes a lasting change of control. Firstly, the temporary nature must be agreed in a legally binding manner. Most importantly, there should be no doubt as to the promptness of the second stage after the initial acquisition, or the initial transaction will be considered as a separate merger.

In this case, the implementation of the third stage (acquisition of exclusive control) can only be established with certainty between January 1, 2023 and December 31, 2033. Since this final stage cannot be promptly completed, the joint control stages constitute a separate merger transaction.

The Simon group will therefore have to notify again in a few years when it acquires full control.

Suspecting a cartel is not enough, suspicions must be adequately substantiated

By decision of January 20, 2016, the French Competition Authority dismissed the referral of two companies (Pyxis Pharma and Sagitta Pharma), regarding allegations of anticompetitive agreements in the sector of distribution of non-reimbursable medicinal products. The main seizing party, Pyxis Pharma, is a structure de regroupement ŕ l'achat (SRA) which purchases, on behalf of its pharmacist members, medicinal products, except for reimbursable medicines.

The seizing party reported two agreements. Firstly, a horizontal agreement between a number of laboratories, which allegedly concerted and, by refusing negotiations and granting less advantageous conditions than to other players, sought to exclude the SRAs from the market. Pyxis Pharma thus claimed parallel conduct which allegedly was the result of a prior agreement.

The second practice criticized is a vertical agreement between laboratories and pharmacist associations with the aim of dissuading the members of the latter from becoming members of SRAs and ultimately excluding SRAs from the market for the distribution of non-reimbursable medicinal products.

The French Competition Authority rejected both allegations. With respect to the first agreement, it considered that the laboratories' commercial practices in relation to SRAs are not harmonized, that the laboratories made their offers on different dates and that the initiation of legal proceedings against Pyxis Pharma was not coordinated.

Concerning the second agreement, the documents submitted by the claimant were declared non-conclusive, their content not supporting the allegations of anticompetitive practices.

The SRAs learned the hard way that suspicion of an anticompetitive agreement is not sufficient; it is necessary to have specific, serious and consistent evidence which substantiates said suspicions.

Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries.

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.

Events from this Firm
18 Oct 2018, Other, Prague, Czech Republic

Právnické osoby jsou v České republice trestně odpovědné od ledna 2012. Trestnímu stíhání v ČR prozatím čelilo nebo čelí 1239 firem, do konce letošního pololetí jich bylo pravomocně odsouzeno 341.

18 Oct 2018, Other, Milan, Italy

Il contratto di agenzia: Inquadramento sistematico, aspetti gestionali e soluzioni pratiche.

18 Oct 2018, Other, Milan, Italy

Il contratto di agenzia: Inquadramento sistematico, aspetti gestionali e soluzioni pratiche.

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
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
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 (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

To Use 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.


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.


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