French Competition Law provides a comprehensive review of the French rules relating to competition: restrictive agreements, commercial negotiation, abuses of a dominant position, procedure and merger control.

French Competition Law

Designated by the Constitutional Council ("Conseil constitutionnel") as an “independent administrative body” , the Competition Council replaced the Competition Commission in 1986. The LME Law of 4 August 2008 renamed it the Competition Authority and increased its powers. Its status as an independent administrative authority is now expressly stated in Article L. 461-1, I of the  Commercial Code. Th …

The Competition Authority

Designated by the Constitutional Council ("Conseil constitutionnel") as an “independent administrative body” , the Competition Council replaced the Competition Commission in 1986. The LME Law of 4 August 2008 renamed it the Competition Authority and increased its powers. Its status as an independent administrative authority is now expressly stated in Article L. 461-1, I of the  Commercial Code. The text specifies that the Authority shall ensure the free play of competition. It is composed of 17 members appointed for a period of 5 years by the Minister of the Economy. Six of the members must be current or former members of the “Conseil d'Etat”, the “Cour des comptes”, the Court of Cassation, or other administrative or judicial courts. Five members are chosen for their ability in economic matters or matters relating to the law of competition and consumer law. The remaining five members must have proven experience in either the production or distribution sector or be experienced professionals. Four vice-presidents are appointed from those members, two of whom are chosen out of the ten. The President is appointed according to his/her competences in law and economics on the advice of the parliamentary commissions competent in competition matters. Further, the Authority is assisted in its decision-making activities by a chief case-handler  ("rapporteur général"), and a number of other investigating officers/case-handlers ("rapporteurs"), most of them sharing an administrative background, who prepare the cases brought before the Authority. The Ordinance of 13 November 2008  clearly established the distinction between the investigative and decision-making roles within the Competition Authority. The rapporteur général thus has greater investigative powers: the investigation department of the Authority is placed under his supervision; he must be informed by the Minister's department if it intends to open investigations; he may initiate proceedings of his own motion, issue injunctions with periodic penalties or hand down fines to undertakings for failure to comply with the instruction of officials.

The Authority may sit in plenary session, in sections  or as a standing committee composed of the president and the four vice-presidents. The president or a vice-president can adopt on his own the decisions referred to in Articles L. 462-8 (non suit, inadmissibiliy decision) and L. 464-2 to L. 464-6 (cease-and-desist orders, finanicial sanctions, periodic fines, commitments) where they concern anticompetitive micro-practices which have been the subject of a referral by the Minister of the Economy pursuant to Article L. 464-9, paragraph 4, which provides for referral to the Authority if the parties refuse to settle. 

The first of the Authority's internal regulations , which is updated from time to time  was adopted on 29 March 1988. The internal regulations are supplemented by a charter of ethics which applies to members and staff of the Competition Authority.

The Authority has a general consultative role in competition matters. The parliamentary commissions that deal with competition matters may hear the president of the Competition Authority  and consult the Authority on any question coming within the scope of their jursidiction (Art. L. 461-5 Commercial Code) . It gives an opinion on all matters relating to competition at the request of the government . It may also give its opinion on the same questions at the quest of the territorial collectivities, business associations and trade unions, consumer organizations, chambers of agriculture, chambers of trade  or chambers of commerce and industry with regard to the interests for which those bodies are responsible . The Authority may also be consulted by the courts with regard to the anticompetitive practices defined in Articles L. 420-1, L. 420-2, L. 420-2-1, L. 420-2-2 and L. 420-5 of the Commercial Code and referred to in cases they are hearing (restrictive agreements, abuse of dominant position or abuse of dependence, exclusive importation rights in the overseas departments and regions (DROM) and overseas collectivities (COM), exclusivity imposed by reservation centers for chauffeur-driven vehicles (VTCs), abusively low prices, Article L. 462-3 of the Commercial Code) . The Authority may make available to any court that consults it or asks it  to submit documents that are not already at the disposal of a party to the proceedings “all information that it has concerning the anticompetitive practices concerned, except for documents prepared or gathered under IV of Article L. 464-2” , i.e. documents gathered in relation to leniency applications. It may do this within the same limits when it makes observations on its own initiative before a court. The Authority must be consulted by the government on any draft regulation establishing a new system having the direct effect of subjecting the practice of a profession or the access to a market to quantitative restrictions, establishing exclusive rights in certain areas or imposing uniform practices in terms of prices or conditions of sale (Art. L. 462-2) . Block exemption decrees concerning restrictive agreements are adopted following a favorable opinion from the Competition Authority (Art. 420-4).

Article L. 462-4 now provides that the Competition Authority may take the initiative to give an opinion on all questions concerning competition. It may also recommend to the Minister of the Economy or the minister responsible for the sector concerned to take the steps necessary to improve the competitive operation of markets.

The Macron Law of 6 August 2015  has considerably extended the scope of the advisory functions of the Competition Authority. It can be now consulted, in particular, on the fees and conditions of installation of the regulated professions , as well as on the periodic revision of such fees.

The publication of opinions of the Authority is governed by Article R. 462-1 of the Commercial Code.

Every year before 30 June the Authority delivers its Activity Report to the government and to parliament.

The Ordinance of 1 December 1986, vested the Authority with decision-making power on anticompetitive practices, i.e. cartels, abuses of dominance and economic dependence and abusively low pricing. In 2008, with the adoption of the LME Law, that power was also extended to merger control, which is partially shared with the Minister of the Economy who retains a subsidiary decision-making power.

The Competition Authority works in close cooperation with the DGCCRF - “Direction Générale de la Concurrence, de la Consommation et de la Répression des Fraudes” (General Directorate for Competition Policy, Consumer Affairs and Fraud Control). The “Autorité de contrôle prudentiel et de résolution” (Prudential Supervisory and Resolution Authority - banking and insurance sectors), the Competition Authority and the “Autorité des Marchés Financiers” (Financial Markets Authority) are allowed, notwithstanding any provisions to the contrary, to share the necessary information for the performance of their respective missions.

Cons. const., 23 January 1987, JCP G, 1987, I, 3300

Law No 2015-990 of 6 August 2015 on growth and activity and equality of economic opportunities, JORF No 181 du 7 August 2015, 13537.

The services of court empowered auctioneers ("commissaire-priseur judiciaire"), commercial court clerks, bailiffs, court-appointed administrators, judicial agents (insolvency), notaries, and for certain tranasctions, lawyers (Art. L. 444-1, C. com.).

The last amendement was on 14 March 2012.

See Competition Council Opinion (Avis) No 96-A-05 of 2 May 1996 relative to the adoption of the Law of 1 July 1996, LawLex200200000040JBA,  National Assembly's Production and Trade Commission Report of 21 May 1996, No 2801, annexes 107, LD June 1996, 1.

Article L. 462-1 C. com.; Avis Cons. conc. No 88-A-12 of 12 July 1988, BOCC, 30 July 1988, 203, stating that this opinion may only relate to considerations of a general nature with the exception of issues affecting specific undertakings; No 00-A-04 of 12 December 2000, BOCC, 23 January 2001, 55, stating that the opinion may not concern the unlawful nature of certain practices with regard to Article L. 420-2 of the Commercial Code.

Cons. d'Ét., 15 March 2000, RJDA, 2000, No 804.

Art. L. 462-3, al. 2, introduced by Law No 2012-1270 of 20 November 2012 on the economic regulation in French overseas departments, and on various provisions related to overseas departments.

Cons. d'Ét., 12 June 1992, RJDA, 1992, No 692.

The liberalization of the European economies carried out at the instigation of the European authorities has led to the emergence of a new type of administrative authority - regulatory agencies responsible for ensuring the transition from monopolies previously classified as natural, and which for this reason had been entrusted to incumbent operators, to competitive markets. As well as acting as sector watchdogs and providing technical expertise to the competition authorities, the regulatory bodies carry out a specific mission located upstream or downstream of the intervention of the competition authorities. Operating directly within the economic and legal spheres in which competition plays out, the bodies monitor entries to  and maintenance on the market of new entrants  and act as mediators in potential conflicts between customers and suppliers. The regulatory authorities intervene of course primarily in the sectors newly opened up to competition  and generally in their supervisory capacity . Regulated sectors include the network industries (telecommunications, audiovisual and energy sectors), banking and financial markets. The legislature has thus created: the “Autorité de régulation des télécommunications” (ART) , which later became the “Autorité de régulation des communications électroniques et des postes” (ARCEP) , with the entry into force of Law No 2005-516 of 20 May 2005 on the regulation of postal activities; the audiovisual watchdog - “Conseil supérieur de l'audiovisuel (CSA)  which has now  become the Autorité de régulation de la communication audiovisuelle et numérique (Arcom)  since its merger with the Haute Autorité pour la diffusion des oeuvres et la protection des droits sur internet (Hadopi),; the "Commission nationale d'urbanisme commercial” (CNUC) - commercial urban planning - which then became the “Commission nationale d'équipement commercial” (CNEC) , the “Commission de régulation de l'énergie (CRE) ; the "Autorité de contrôle prudentiel et de résolution”  and the financial markets watchdog -  the “Autorité des marchés financiers” . The allocation by the legislature of the status of legal entity to some of the agencies  is a way of equipping them with genuine independence from the executive in order to avoid conflicts of interest in the sectors where the State has an economic stake .

The Postal and Electronic Communications Regulatory Authority (ARCEP), the audiovisual authority Arcom, and the Energy Regulatory Commission (CRE) are required to inform the Competition Authority as to any abuses of dominance or cartels they know of in their area of responsibility . Furthermore, specific provision is made for the Authority to be able to seek the opinion of the ARCEP or Arcom when applying competition law in their specific sector . Article L. 511-4 of the Monetary and Financial Code makes it mandatory to seek the opinion of the “Autorité de contrôle prudentiel” for merger control in the banking sector and matters relating to restrictive agreements and abuse of dominance .

In application of the European “telecoms package” directives  (transposed into French law by Law No 2004-669 of 9 July 2004 and Law No 2005-516 of 20 May 2005, incorporated into  Article L. 37-1 of the Postal and Electronic Communications Code),  ARCEP  defines the relevant markets in the electronic communications sector and analyses the state of competition on each of those markets. If it finds that the play of competition is inadequate - notwithstanding any corrections made on application of Articles 101 and 102 TFEU, it identifies, after obtaining the opinion of the Competition Authority, which operators are in a position of power according to the criteria of dominance, and if necessary, requires them to comply with regulatory obligations .

The ARCEP , Arcom  and the CRE  also have the the power to settle disputes that may affect the competitive balance of the sector under their supervision.

Lastly the Macron Law of 6 August 2015  confers on the Regulatory Authority of Rail and Road Activities (ARAFER) the administrative supervision of motorway concession undertakings in order to regulate excessive pricing practices, giving it the power to refer to the Competition Authority “abuses of dominant position and practices restricting the free exercise of competition of which it has knowledge [....] and to seek its opinion for any other question falling within its authority”. The Competition Authority must, on the other hand, inform the ARAFER of any referral falling within its field of competence and can solicit an opinion from it on any question relating to the rail and road transport sector.

For example: the CPCE (Postal and Electronic Communications Code), Art. L. 36-7, creating an authorization scheme for scarce resources; Art. 22 of the Law of 30 September 1986, providing for an agreement with broadcasters for the use of frequencies .

See CPCE, Art. L. 36-7-5º and L. 38-1 on the ARCEP's power to regulate prices. ARCEP is empowered to fine operators for failure to comply with their obligations (CPCE, Art. L. 36-11).

Prudential Supervisory and Resolution Authority (banking and insurance), Article L. 612-1 Monetary and Financial Code.

Article L. 621-1 Monetary and Financial Code.

The CRE had the status of legal entity for a short time (Law No 2004-1485 of 30 December 2004, Amending Finance Law for 2004, amending Law No 2000-108 of 10 February 2000, on the modernization and development of public electricity supply, Article 117) but was later withdrawn. The financial markets authority (AMF) created by the Law on Financial Security is a legal entity (Article L. 621-1, C. mon. fin.).

The European authorities require a total separation between the role of operator and that of regulator. See Case C-202/88 France v Commission [1991] ECR p. I-1223, LawLex200500003928JBJ; Case C-69/91 Decoster [1993] ECR p. I-5335, LawLex200400003561JBJ.

ARCEP: for electronic communications, CPCE, Art. L. 36-10; for postal activities, CPCE, Art. L. 5-8; Arcom: Law No 86-1067 of 30 September 1986, on the freedom of communication, Art. 17-1 and 41-4; CRE: Law No 2000-108 of 10 February 2000  on the modernization and development of electricity, Art. 39. For an example relating to the CSA see CA, Paris, 3 June 1993, LawLex200200002729JBJ.

See CPCE, Art. L. 36-10 and L. 5-8 (ARCEP) and Law of 30 September 1986 (Arcom), Art. 41-4. The Competition Council may see the opinion of the CRE: Art. 39 of the Law of 10 February 2000. The approval of Arcom relating to the acquisition by Canal+ and Vivendi of Direct 8 and Direct Star, based on the authorization decision of the Competition Authority to which it refers must be annulled as a result of the annulment of the decision of the Authority: Cons. d'Ét., 23 December 2013, LawLex201300001888JBJ.

CA Paris, 27 November 2001, LawLex200200002280JBJ.

Directive 1999/5/EC Radio and telecommunications terminal equipment, 7 April 1999; “Framework”, “Authorization”, “Access” and “Universal Services” directives, OJEC L 1008, 24 April 2002; “Competition” OJEC L 249, 17 September 2002.

See Compeittion Council Opinion No 04-A-17 of 14 October 2004 on the termination of voice calls on mobile phone networks.

For the first intervention of the ART, later becoming the ARCEP, in application of the “telecoms package”, see ART decisions 04-936, 04-937,  04-938, 04-939 of 9 December 2004, LawLex200500005102JBJ, which found that call termination on each network constitutes a relevant market on which each operator holds the monopoly for call termination services.

There may also be regulation in sectors in which the public authorities consider there to be a competitive imbalance. See for example Law of 27 December  1973 on commerce and craft trades, amended by Law No 2004-804 of 9 August 2004, making supermarkets of above a certain surface area subject to authorization.

Art. L. 36-8 and R. 11-1 s., CPCE, gives the ARCEP the power to settle disputes arising between operators relative to the interconnection between networks. Decisions taken by the ARCEP may be appealed before the Paris Court of Appeal: see CA Paris, 6 April 2004, France Télécom v Iliad and CA Paris, 17 April 2005, France Télécom v Western Télécom.

By virtue of Article 17-1 of Law No 86-1067 of 30 September 1986 amended on freedom of communication, Arcom settles dispute between content editors and distributors of services. Appeals lodged against the decisions are brought before the Conseil d'État

The CRE is invested with the power to resolve disputes related to network access. Its decisions may be appealed before the Paris Court of Appeal: see CA Paris, 25 January 2005, LawLex200500003790JBJ, which held that the referral to the CRE under Article 38 of Law No 2000-108 of 10 February 2000 by EDF-RTE for a request for the resolution of a dispute, had exceeded its powers by ordering the co-contrator of the public undertaking to pay the debt owed and to conclude a network access agreement.

Law No 2015-990 of 6 August 2015 for growth and activity and the equality of economic opportunities, JO du 7 August 2015, 13537.

Another possibility was also the ex post facto control in the form of a de-concentration of markets with high levels of concentration.

Postal and Electronic Communications Regulatory Authority. Law No 2005-516 of 21 May 2005 on the regulation of postal activities.

Law No 89-25 of 17 January 1989, amending Law No 86-1067 of 30 September 1986 on the freedom of communication.

Law No 2021-1382 of 25 October 2021 on the regulation and protection of access to cultural works in the digital age, OJ 250 of 26 October 2021.

National Commission of Commercial Equipment. Law No 73-1193 of 27 December 1973 on commerce and craft trades, amended by Law No 2004-804 of 9 August 2004. See Cons. d'Ét., 30 July 2003, LawLex200300004215JBJ: the Commission of commercial equipment, required to comply with the rules of competition when granting authorizations to large stores, must specifically ensure that the authorization does not place the beneficiary in a situation in which it may abuse a possible dominant position.

Energy Regulatory Commission. Previously the “Commission de régulation de l'électricité”. Law No 2000-108 of 10 February 2000 on the modernization and development of electricity.

French Competition Law

15. The Competition Authority

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15. The Competition Authority

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