France: Competition News May 2017

Last Updated: 16 May 2017
Article by Emmanuelle van den Broucke

Transposition by France of the European Directive on compensating harm caused by anticompetitive practices

On March 9, 2017, France adopted, a little late, the texts transposing the directive of November 26, 2014, whose purpose was to facilitate compensating the harm caused to the victims of anticompetitive practices.

Although French law was already largely in line with the directive, the transposition texts add a few useful novelties for these actions for damages for anticompetitive practices.

Scope: France has chosen not to limit the scope of the action to unlawful agreements and abuses of a dominant position but to open it to any and all breaches of European or domestic competition law which include, for example, the abuse of economic dependency or the practice of abusively low prices.

The offense is presumed: when a breach of competition law has been committed, the offense is presumed, and this presumption is irrebuttable in case of final sanction by the French Competition Authority or the European Commission. However, the presumption of offense is a simple presumption for a decision adopted by a competition authority of another Member State.

Principle of full compensation of the harm: the transposition also includes the principle of full compensation of the harm suffered by the victims of anticompetitive practices. Article L.481-3 of the French Commercial Code contains a non-exhaustive list of the harms open to compensation including, notably, lost opportunity and moral harm. Harm is presumed when several companies have agreed on prices to the detriment of other competitors. The action of direct purchasers is also facilitated since it is now up to the defendant to prove that the purchaser passed on the overcharge resulting from the anticompetitive practices to the indirect purchaser (consumers for example).

Joint liability of the parties to the unlawful agreement: all the companies which contributed to the same breach shall be jointly held liable to compensate the resulting harm. Then, the principle of allocation between them is that they contribute to the debt in proportion to the seriousness of their offense and their causal role. However, there are two exceptions: SME and beneficiaries of a leniency measure are not concerned by this principle of joint liability, subject to certain specific reservations, notably when full compensation cannot be obtained from the other companies involved.

Adapted 5-year statute of limitations: the new text adapts the 5-year statute of limitations, to have it start, at the end of the practices, as soon as the claimant knows that the anticompetitive practice of an identified author has caused it harm, which in practice extends the possibility to claim compensation.

Easier production of evidence: the judge can now order the French Competition Authority or the European Commission to produce certain exhibits, or categories of exhibits, provided these exhibits do not self-incriminate the companies, in order not to weaken the leniency and settlement procedures. In addition, the judge can more easily obtain documents protected by business secrecy by ordering the production of a version of the exhibit redacted of its confidential elements or a summary thereof.

Despite definite progress, the transposition of the directive, as such, does not overcome the main difficulty which concerns the quantification of the harm, quantification which can be complicated and costly when it means determining the surplus price resulting from an unlawful agreement. It remains to be seen whether the judge will wish to call on the French Competition Authority, as provided by law, so that it gives him its orientations on the assessment of the harm, knowing that the Authority which has sanctioned the practices will in all likelihood not be completely neutral in this exercise. This could also prompt companies to be particularly careful when producing economic studies before the Authority when they are defending themselves, if the data produced to demonstrate the existence of limited harm to the economy can then be used by the Authority to help the judge quantify the harm.

The French Competition Authority rules that there is no case to answer for exchanges of information in the short-term car rental sector

On February 27, 2017, the French Competition Authority ruled that exchanges of business information between competitors will not be sanctioned, taking into much better consideration than before the impact of the information exchanged on the actual behavior of the companies concerned on the market.

The first practice reported concerned monthly exchanges of information enabling car rental firms to have access, via airport managing bodies, to each operator's turnover, number of contracts and average value of the contracts during the previous month.

The Authority explained that in order to analyze the anticompetitive effect of exchanges of information between competitors, it is necessary to analyze not only whether the exchanges of information had taken place on a sufficiently concentrated market but also the strategic nature of the data exchanged. Only data which allows a company to decipher its competitor's business and pricing strategy with sufficient precision to adapt its own business behavior accordingly has an anticompetitive effect.

In this case, the information received by the different competing agencies via the airport managing bodies did not allow them to separate the turnover from individual clients from that of key account clients. For individual clients, the information exchanged on a monthly basis did not allow them to observe in an ongoing manner the effectiveness of the pricing policy of each rental firm on this client base for which pricing evolves in real time according to demand and competitor prices. Regarding the key account clients, monthly statistics, aggregated with the individual clients, do not reinforce the transparency of this market for which negotiations take place by calls for tenders on an annual or biannual basis.

In the absence of proven potential effects on competition, the Authority therefore ruled that there is no case to answer.

Furthermore, the main car rental firms were accused of having consulted each other on a "supplement for train station" to be applied to their clients, after experiencing themselves a significant increase of their operating costs. Several rental firms decided to apply a price supplement to their clients, from December 2005, following the adoption by SNCF and EFFIA of new operating conditions which were most expensive for the car rental firms.

The application of this price supplement by several rental firms at the same time aroused the authorities' suspicions on a potential unlawful agreement on prices between such firms. However, as the operators concerned explained, some "key account" clients which used the services of several rental firms, had communicated to their various car rental firms information on the pricing practices of their competitors and notably on the future application of the "supplement for train station". Persuaded by the argument, the Authority finally concluded that there had simply been parallel behavior and dismissed the characterization of concerted practice.

The European Commission launches its anonymous whistleblowing tool on anticompetitive practices

Since March 16, 2017, any individual can now alert the European Commission in a totally anonymous manner in case of unlawful agreement and other anticompetitive practices. Whistleblowing systems by third parties already existed in certain Member States such as the United Kingdom – where the procedure however is not anonymous vis-à-vis the authorities – or Denmark.

The new tool proposed by the Commission guarantees the anonymity of the whistleblowers, both vis-à-vis third parties and the Commission itself, thanks to an encrypted email system managed by an external specialized service which transmits only the content of the messages without any other metadata. The whistleblower retains the right to reveal his identity at any time.

For its part, the Commission has the possibility to answer these alerts, notably to ask for more information or clarifications.

This system complements the Commission's leniency program which enables companies to come forward about their own involvement in an unlawful agreement in exchange for a cancellation or reduction of the fines imposed.

Although this system has already paid off in Denmark where according to Danish competition authorities, 10% of alerts lead to investigations, it raises issues notably regarding the total anonymity from which the whistleblower benefits including vis-à-vis the Commission. The question of these whistleblowers' motivation, a priori employees of the companies whose actions are reported, may arise (employee in conflict with his managers, dissatisfied dismissed employee, etc.). In France, the law of December 9, 2016 known as "Sapin II" on transparency, the fight against corruption and modernizing economic life did not recognize total anonymity to whistleblowers reporting offences or felonies but only simple confidentiality.

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. www.dentons.com.

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
Events from this Firm
28 Sep 2017, Seminar, London, UK

On 26 July the FCA published its long-expected consultation paper on the extension of the SMCR to all FCA-authorised firms. The so-called "core regime" introduces the key concepts of regulator-approved senior managers, firm-approved certification staff and conduct rules applicable to virtually all staff.

3 Oct 2017, Conference, Zurich, Switzerland

As the founding Partner of the Europe-Iran Forum, Dentons Europe will once again support this year’s event. This compelling event which explores all Iran-related topics will take place in Zürich on 3rd and 4th October.

4 Oct 2017, Conference, Munich, Germany

Dentons Global Real Estate Group is delighted to be exhibiting once again at EXPO REAL, the International Trade Fair for Property and Investment which takes place on 4-6 October, 2017 in Munich, Germany.

 
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”

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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (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 www.mondaq.com

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 Mondaq.com’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.

Disclaimer

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.

Registration

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 unsubscribe@mondaq.com 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.

Cookies

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.

Links

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.

Mail-A-Friend

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.

Security

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 webmaster@mondaq.com.

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 EditorialAdvisor@mondaq.com.

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 enquiries@mondaq.com.

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