France: The Standard Of Proof For Vertical Agreements In French Case Law

Last Updated: 10 March 2009
Article by Alexandre Glatz

Historically, competition authorities started to apprehend vertical anticompetitive agreements after horizontal anti-competitive agreements. After a period of systematic sentencing, practices evolved and some competition authorities even abandon the prohibition per se of resale price fixing, in the context of vertical anticompetitive agreements, in favour of the "rule of reason". However, recent French case law shows that the Competition Council has a more restrictive analyis for the evidentiary standard in cases of vertical anticompetitive agreements.

1. Evolution In The Absolute Prohibition Against Price Fixing

It has always been difficult for competition authorities to sanction vertical anticompetitive agreements. In effect, the consent of distributors is not simple to prove where they implement a commercial policy defined by the suppliers, and where one can infer that this policy is merely the expression of their unilateral intention.

According to case law, the distributors' consent initially resulted from their express or tacit acceptance of the policy defined by the manufacturers in the context of their contractual relationships with the distributors1.

This perception changed with the CFI Bayer and Volkswagen cases2, which established a more restrictive definition of the notion of consent under community law, as a result of which:

  • unilateral measures taken by suppliers are no longer considered to come automatically within the ambit of ongoing commercial relations between suppliers and distributors; and
  • for each measure taken by a supplier, it must be proven that it was approved by the distributor.

Recently, the United States Supreme Court went even further in the Leegin3 case by assessing the legality of vertical agreements through the prism of the "rule of reason" and by overruling its previous case law dating back to the Dr. Miles Medical Co. v. John D. Park & Sons decision of 1911, which had established the rule of the illegality per se of price fixing pursuant to section 1 of the Sherman Act.

Thus, the Supreme Court held that the prohibition per se of imposed minimum pricing practices was a "flawed antitrust doctrine". Siding with the arguments sustained by Leegin, the Court concluded that it was impossible to state with certainty that the practice of setting minimum prices tends to systematically or more often than not restrict competition.

As specified in the Supreme Court's decision, imposing fixed resale prices can have anti-competitive effects in the form of a pricing cartel or an abuse of dominant position. However, the rule of reason favours a more flexible and pragmatic approach to the subject insofar as it requires the complainant, even before proving the restriction on competition, to evidence that the supplier has true market power. In particular, this new approach authorizes manufacturers to setforth the pro-competitive nature of their pricing policy: if the pro-competitive effects outweigh the anti-competitive effects, the practice will not be found unlawful.

As it now stands, French case law does not share this pragmatic approach.

2. The Strict French Case Law Position On Vertical Pricing Agreements

For the Competition Council, the standard of proof for vertical pricing agreements must be assessed according to two types of situations. The first and most simple case arises where an express and binding stipulation between the supplier and distributor is found: in such a case, the explicit agreement embodies the offense. The second case is more complex, arising in the absence of an express agreement, where the Council requires that the existence of the agreement be proven on the basis of "serious, precise and concurrent clues".

The circumstantial evidence required by the Council entails three cumulative components4:

  • "a reference to public sales prices" by the supplier to its distributors: such a "reference" is shown through any process by which a manufacturer communicates to its distributors the price at which it wishes its products to be sold to the public, without the necessity of any discussion of such prices. In other words, the existence of a supplier-recommended price suffices;
  • "price enforcement", based on control by the supplier of the resale price accompanied by any form of retaliation (e.g.: reduction of discounts in the event of a breach of the pricing policy);
  • compliance with these prices by distributors with respect to a significant number of the products upon resale.

This approach was recently reaffirmed by the Court of Appeal of Paris5.

Businesses thus find themselves in a paradoxical situation: the unilateral communication of a recommended price is not considered illegal but is the first sign of the existence of a vertical agreement6. The end result in practice is that suspicion is raised where there is any communication of a recommended price.

Upon the finding of a recommended price by the supplier, the Council pursues its legal analysis of the facts and sanctions any vertical agreement where the other two components are met, without worrying about the competitive consequences of the operation.

In other words, French law and U.S. law have radically different approaches today to vertical pricing agreements: the Competition Council considers these agreements through the prism of evidence, viewing the evidence from a legalperspective, while the U.S. authorities focus on the practical effects of the conduct at hand and have more of an economic approach. In the former case, the agreement is automatically prohibited once the evidence is provided and, in the latter case, a case-by-case analysis is used to validate or invalidate the agreement.

Furthermore, the Council seems to be interpreting the circumstantial evidence required not so restrictively. As the Council indicated in its 2006 activity report, the evidence of the acquiescence by distributors in the price fixing practices does not require that every distributor be shown to have accepted, but only that a "major", "sufficient" or "significant" proportion thereof have done so.

Consequently, by confirming in its decision dated June 26, 2007 the Council's decision 06-D-04 bis related to practices in the perfumery sector, the Paris Court of Appeal indicated [translation]:

"As far as the acquiescence of the distributors to the invitation [of the supplier to a pricing agreement] is concerned, the standard retained by the Council of "the significative application of the imposed prices" has to be considered (...) as equivalent to the usual standard indicating that "the prices indicated have been effectively applied by the distributors"; the Council can also use, for demonstrating the acquiescence of the distributors to the pricing agreement, statistical standards (...)".

In the Volkswagen decision rendered on July 13, 2006 by the Court of Justice, the latter required that the competition authority adduce evidence on a case-by-case basis of the acquiescence by each of the distributors to the disputed invitation by each of the suppliers in the following terms:

"the case-law (...) does not imply that any call by a motor vehicle manufacturer to dealers constitutes an agreement within the meaning of Article 81(1) EC and does not relieve the Commission of its obligation to prove that there was a concurrence of wills on the part of the parties to the dealership agreement in each specific case."7

In sum, while an economic analysis in assessing anti-competitive price fixing practices is being advanced in the United States in order to describe complex situations more effectively, French case law is distancing itself from this approach and seems also to interpret the acquiescence of the distributors in a more broader way than in EC law.

The issue of the standard of proof applicable to vertical pricing agreements under French case law should still be a source of debate.


1. See, for example, CA Paris, January 28, 1988, Conseil de l'ordre des pharmaciens.

2. CFI, October 26, 2000, aff'd T-41/96, Bayer AG, point 71 and 173 of the decision. CFI, December 3, 2003, aff'd T-208/01, Volkswagen AG, point 30 to 33 of the decision.

3. Supreme Court of the United States, Leegin Creative Leather Products, Inc. v. PSKS, Inc. rendered June 28, 2007.

4. These three components of the bundle of clues were defined for the first time by the Council in decision no. 02-D-42, which was partially quashed. They were however subsequently confirmed particularly in the decision rendered on September 25, 2003 relating to practices used in the school calculators sector (03-D-45); the decision rendered on February 24, 2005 relating to practices used in the civil firearms and munitions market (05-D-07); the decision rendered on December 5, 2005 relating to the application by the corporation Avantage against practices used in the mass-produced electronics products industry (05-D-66); the decision rendered on December 19, 2005 relating to practices used in the pre-recorded videocassettes industry (05-D-70); the decision rendered on March 13, 2006 relating to practices used in the paerfumery sector (06-D-04 bis).

5. CA Paris, June 19, 2007, RG no. 2006/00628, Secteur des produits d'électronique grand public; CA Paris, June 26, 2007, RG no. 2006/07821, Secteur de la parfumerie de luxe.

6. See, for example, the Council decision 05-D-66 rendered on December 5, 2005, Secteur des produits de l'électronique grand public.

7. CJEC decision, July 13, 2006 (aff'd 74/04-P (Rec.2006, p.I-6585)).

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.