France: Paris Competition Bulletin - July 2009

Last Updated: 26 August 2009
Article by Melanie Thill-Tayara, Marta Giner and Emmanuelle van den Broucke


In a notable judgement of 4 June 2009, the T-Mobile case, the European Court of Justice (the "ECJ") gave important clarifications on the concept of concerted practice under Article 81(1) EC.

The case arose out of a preliminary reference posed by the Dutch jurisdiction hearing an appeal against fines imposed by the Dutch competition authority on the five leading operators on the Dutch mobile phone market. The judgment is particularly interesting for three reasons.

Firstly, the ECJ confirmed that concerted practices, in this case information exchanges, can be anticompetitive by object and thus require no examination of their effects on the market. The ECJ held that, for a concerted practice to have an anti-competitive object, it is sufficient that it is capable, in its legal and economic circumstances, of affecting competition. The extent to which competition is actually affected in each case is only relevant when determining the level of the fine or damages. It follows that an exchange of information, has an anticompetitive object if it is intended to reduce or remove the degree of uncertainty existing between competitors as to each others conduct on the market. In the T-Mobile case, the Dutch court would therefore have to assess whether the discussion of a possible reduction of dealer remunerations was capable of removing uncertainties between mobile phone operators. The ECJ also stated that, for a concerted practice to be anticompetitive by object, there is no need for a direct link between the practice and consumer prices as Article 81 also protects "the structure of the market and competition as such."

Secondly, the ECJ stated that the existing presumption that the market behaviour of undertakings who participate in a concerted practice, and who subsequently remain on the market, is influenced by the practice is "an integral part of applicable Community law." This principle must therefore be applied by the national courts regardless of national rules of proof. This means that, to avoid the application of Article 81 EC, participating undertakings must prove to the national court that they determined their market behaviour independently of the concerted practice.

Thirdly, the ECJ held that, in principle, a single meeting between competitors can suffice to give rise to this presumed causal connection between the practice and the participants' conduct on the market. However, the ECJ recognised that this presumption depends on the nature of the cartel or concerted practice and "is more compelling where undertakings have concerted their actions on a regular basis over a long period." A single meeting would not, therefore, suffice for a complex and continuous cartel. The ECJ held that, in circumstances such as that in the TMobile case, where the objective of the practice was to organise a one-off change in market behaviour based on one parameter of competition, a single meeting between competitors could suffice.

This judgment confirms that even a concerted practice which has no effect on the market can be condemned as anti-competitive if that practice was capable of influencing the market behaviour of participating undertakings. This judgment confirms the necessity to carefully assess more than ever any information exchange between competitors.

In a judgment of 11 June 2009, the European Court of Justice (the "ECJ") explained the tax position of fines imposed by the European Commission (the "Commission") for anti-competitive behaviour. The ECJ held that the deduction of fines from taxable profits by a company, or even linked company, could jeopardise the efficacy of the Commission's decision condemning anti-competitive conduct. Such deduction, either by the company fined or by its subsidiaries, is thus unlikely to be acceptable under Community Law. The judgment provides welcome clarification on this point as well as confirming the Commission's right to submit observations of its own initiative in national proceedings on the deductibility of fines.


By a decision of 2nd June, the French Competition Authority (the "Authority") held that it was not an abuse for the Regie de Transports de Marseille ("RTM"), monopoly undertaking on the public transport network for the city of Marseille, to hold a prior selection procedure to choose a partner to respond to a call for tenders for the management of the tramway.

The complainant association SNTU-CFDT argued that the prior constitution of such a grouping of undertakings was not necessary and allowed the exchange of commercially sensitive information. For the Authority, on the contrary, the call for candidates was motivated by RTM's willingness to divide the risks associated with the exploitation of the tramway. Such a division was only conceivable if the financial risks were not solely born by RTM and thus its prior search for a partner was not anti-competitive.

This decision is also the occasion for the Authority to recall how it examines dominant positions in cases of calls for tenders. In practice, the relevant market to be analysed is that of the call for tenders. It is, by nature, ephemeral and does not permit a continuing analysis of the operators' positions.

For this reason, the Authority also uses other elements in its analysis. In doing so, it identifies three recurrent situations.

The exiting incumbent is renewed for a new market: in and of itself, this is not sufficient. It is necessary to demonstrate that the renewal is associated with a situation of dominance and abusive behaviour.

The already dominant undertaking in the sector concerned wins the tender: for example, there can be an abuse when the dominance exercised on the national market distorts competition on the local market of the call for tenders.

Lastly, the most frequent case, the undertaking winning the call for tenders is in a dominant position but in a connected market: it is this last situation which was concerned in the case in question. Even if RTM was dominant on the overall market for transport in Marseille, the Authority observed that, for the call for tender, RTM was in competition with sizeable companies also having large market power. In addition, the selection of a partner was transparent, fair and nondiscriminatory, without any abuse committed.

The Authority here provides the keys to its analysis in the particular framework of calls to tender, giving undertakings a greater visibility as to the practices which they could implement.


The French Competition Authority (the "Authority") has handed down its first significant decision on merger control for the merger of the Caisse d'Epargne and Banque Populaire groups and used the occasion to give interesting specifications on several aspects of merger control.

In relation, first, to the role of the State who subscribed several billions in the capital of the new entity, the Authority clarified that this intervention must be assessed having regard to the State's shareholder quality and not to its general regulatory or guardianship powers over banks. The Authority then considered that, in this case, the State as shareholder did not exercise control over the future entity, its participation not giving it the power, neither in law or in fact, to exercise a decisive influence.

On the competitive analysis of the operation, the Authority operated a thorough analysis of the different markets affected by the operation, notably by closely studying its impact on the local markets for retail and commercial banking, concluding that the only remedies necessary were in La Reunion. Contrary to the parties' theory that trade signs of the same group would compete against each, the Authority adopted the banking group as a unit for analysis as the decision to withdraw a trade sign or to more closely harmonise the commercial policies of entities of the same group could be taken at any moment.

Turning to the nature of the remedies adopted, while recalling that divestiture remedies were preferable to behavioural remedies where market shares are high, the Authority took into account, in this case and in the current recession, the difficulty, or near impossibility, of finding a candidate purchaser for the assets to be divested in La Reunion and thus accepted a remedy consisting of maintaining distinct and autonomous legal structures for the three trade signs. The parties nevertheless had to undertake the alternative remedy of divestiture of some assets if the competition situation declines substantially.

In this period of recession when candidates for the acquisition of assets are less numerous, the Authority has had to adapt its marked preference for structural remedies and accept behavioural remedies, even if this increases its burden of control.

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”

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.