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

Information exchanges are not in themselves contrary to competition rules , but must have restriction of competition as their object  or effect in order to be prohibited under Article L. 420-1.Exchanging information on specific data  or future prices, when it is done more or less systematically and involves the main market operators  or a very concentrated market , has every chance of being prohib …

Conditions for prohibition

Information exchanges are not in themselves contrary to competition rules , but must have restriction of competition as their object  or effect in order to be prohibited under Article L. 420-1.Exchanging information on specific data  or future prices, when it is done more or less systematically and involves the main market operators  or a very concentrated market , has every chance of being prohibited. However, it is not necessary for the market to be oligopolistic for the exchange to be unlawful: the fact that the offer is not atomized is sufficient . Whether an exchange between suppliers concerns non-individualized data or segmented data, it is just as reprehensible if its purpose is to prepare for negotiations with supermarkets, which are based on global developments and do not take place product by product . When the information exchanged is of a sensitive nature for negotiations with industrial buyers, the Court of Appeal considers that the actual functioning of the market, far from excluding any possibility of a common pricing strategy, establishes the interest of these exchanges for the participants, as long as they take place at the same time as the negotiations . The fact that the data is public is also irrelevant. In effect, an exchange of information on prices already known by customers remains reprehensible, since obtaining such information on the market would have been more complex, less exhaustive and less immediate .

According to EU case law there is a distinction between information exchanges that are anticompetitive per se and those that are caught by the prohibition as they are a means of underpinning the functioning of another agreement, such as a market-sharing agreement . French case law has relied on this distinction and applied it in finding that an agreement could be at the same time punishable per se as it related to information on issues of competition  and also for underpinning an unlawful market-sharing agreement . Generally, recent French case law has shown itself to be particularly severe with regard to exchanges of information between rival companies and has not hesitated in imposing very heavy fines where the information exchange takes place on concentrated markets, even if it does not directly concern competition-related data . However, the Court of Cassation has confirmed that the oligopolistic character of the market and abstract data alone do not create the presumption that a regular exchange of information is such as to appreciably distort competition .

The following practices have been sanctioned: whereby candidates for a public procurement contract exchange information on candidates and lots prior to placing bids in order to make just one worthwhile bid per lot , or where undertakings inform each other prior to the deadline for submission of bids, of their intention not to submit a bid, in order to frustrate the public procurement . It is irrelevant that the exchange of information was not followed by a bid, or resulted in an unsuccessful tender or an award lower than that of the project owner, insofar as the practice had the effect of misleading the latter as to the reality of the competition , or that not all bidders were involved in the exchanges, provided that they concerned sensitive information relating to a current call for tenders, and that they took place before the undertakings concerned each individually submitted their bids . There is no principle of reinforcing the standard of proof when the information is likely to come from a source other than the undertakings involved, such as the contracting authority . The Competition Authority classifies as anticompetitive any exchange of information prior to the submission of bids if it is likely to reduce the uncertainty in which all undertakings must find themselves as to the behavior of their competitors .

The exchange of information on prices seems more likely to fall under the prohibition, when its purpose or effect is to prevent an undertaking from freely setting its selling prices . Thus, manufacturers have been penalized for exchanging information on the rates of price increases they intended to propose to certain customers, even though this concerted action was not followed by an actual alignment of prices , for exchanging information between participants in a call for tenders on the amount of their bid , or for exchanging computerized information enabling competing producers to know in real time the prices charged by each other and to engage in price monitoring . The Competition Authority now seems to reserve the classification of “information exchanges” between competitors to periodic transfers of nominative confidential data relating to past behaviors: the exchanges of data on the commercial and price strategy that undertakings plan to adopt actually constitute horizontal concerted practices on the future pricing behavior of competitors . In order to fall within the scope of the prohibition, the information exchanged must also, according to the Authority, be strategic, i.e. enable the recipient to measure the effectiveness of the commercial policy of competitors and to adapt its competitive behavior in the market in view of its actual functioning and the specific circumstances of the case . Thus, shared confidential information such as individualized sales figures or the number of contracts concluded by each undertaking is not necessarily strategic even if it is not available on the market . Moreover, according to the Court of Appeal, the interest of the competitor receiving the information has no bearing on the existence of exchanges concerning price proposals for certain products, any more than the interest of the party providing the information . Proof of an unlawful exchange of information is brought where the general information exchanged is in itself of strategic interest because of its topical nature  and the frequency of communications over a long period of time and where it has effectively been used by operators to define their commercial policy . Regardless of it being dated, the pooling of certain information, particularly on a regular basis and over a long period of time, can just as easily reduce the degree of uncertainty about the operation of the market, influence the behavior of competitors and reduce their decision-making autonomy .

Traditionally, information exchange, even on prices, is not considered as restricting competition as long as it does not go hand-in-hand with instructions, directives, or recommendations, and as long as data have been observed after the fact, reflect the results observed on a competitive market, and are not individuated . 

For an example see Competition Authority decision No 20-D-04 of 16 March 2020, LawLex20200000542JBJ, which rules out the automatically anticompetitive nature of an exchange of information between wholesalers through a manufacturer market characterized by inter-brand competition which is not particularly concentrated; No 21-D-01 of 14 January 2021, LawLex202100000083JBJ, which states that the exchange of information between non-competitors is not in itself likely to reduce uncertainty in the market concerned when it does not involve sensitive data such as prices or quantities sold.

 Competition Council decision No 90-D-37 of 16 October 1990, LawLex200200003127JBJ. 

For a finding condemning the exchange alone, even if not followed by a price agreement, Competition Authority decision No 14-D-20 of 22 December 2014, LawLex201500001516JBJ, cited above.

Competition Council decision No 05-D-64 of 25 November 2005, LawLex200500010205JBJ; CA Paris, 12 December 2006, LawLex200600002536JBJ.

Competition Council decision No 05-D-64 of 25 November 2005, LawLex200500010208JBJ: information concerning room occupancy rates, geographic origins of customers and average turnover achieved per room; CA Paris, 11 March 2009, LawLex200900000935JBJ, stressing that a regular exchange of confidential and strategic information between three companies operating in the mobile telephony services market is likely to result in a restriction of competition due to the characteristics of this market: a highly concentrated oligopolistic market closed by technological and administrative imperatives linked to the establishment of a telecommunications network and the obtaining of a costly license.

Cass. com., 7 April 2010, LawLex201000000412JBJ.

CA Paris, 17 January 1991, LawLex200200002639JBJ; Competition Authority decision No 23-D-06 of 14 June 2023, LawLex202300007877JBJ, for an exchange concerning the existence of competitors, their name, size, availability of personnel or equipment, their interest or lack of interest in the market in question, or the prices they intend to offer.

Competition Authority decision No 10-D-22 of 22 July 2010, LawLex201000000869JBJ.

Competition Council decision No 02-D-57 of 19 September 2002, LawLex200200002141JBJ, reversed by CA Paris, 17 June 2003, LawLex200300002305JBJ. Also, where common prices are encouraged by information exchanges, Competition Council decision No 88-D-20 of 10 May 1988, LawLex200200002275JBJ. 

CA Paris, 9 March 2023, LawLex202300003351JBJ.

Competition Authority decision No 09-D-25 of 29 July 2009, LawLex200900002997JBJ.

Competition Authority decision No. 03-D-11 of 7 December 2023, LawLex202300014349JBJ.

Competition Council decision No 92-D-29 of 5 May 1992, LawLex200200003177JBJ; Competition Authority decision No 14-D-20 of 22 December 2014, LawLex201500001516JBJ; No. 17-D-20 of 18 October 2017, LawLex201700001688JBJ, recent, individualized and particularly detailed,

Competition Council decision No 92-D-29 of 5 May 1992, LawLex200200003177JBJ.

Competition Council decision No 02-D-57 of 19 September 2002, LawLex200002141JBJ, as amended by CA Paris, 17 June 2003, LawLex200300002305JBJ; in case of the adoption of common prices favored by the exchange of information.

Competition Council decision No 92-D-31 of 28 April 1992, LawLex200002853JBJ; No 94-D-56 of 2 November 1994, LawLex200002910JBJ; No 98-D-23 of 24 March 1998, LawLex200002905JBJ; Competition Authority decision No 23-D-06 of 14 June 2023, LawLex202300007877JBJ, concerning the sending by one undertaking, prior to the opening of bids, of prices for a lot to a second undertaking, whose bid was identical to the prices provided.

Competition Authority decision No 12-D-08 of 6 March 2012, LawLex201200000340JBJ.

Competition Authority decision No 17-D-03 of 27 February 2017, LawLex201700000385JBJ.

Competition Authority decision No 17-D-03, cited above; CA Paris, 16 November 2023, LawLex202300013688JBJ.

Competition Authority decision No 17-D-03, cited above: This is also the case of information provided in aggregate form that does not identify the share belonging to two types of clients belonging to separate markets whose operating conditions, formation of prices and initial level of transparency are very different; See also, Competition Authority decision No 24-D-11 of 19 December 2024, LawLex202400009821JBJ, according to which exchanges concerning volume data and past sales are not in themselves likely to reduce uncertainty as to the future conduct of other participants as to what constitutes one or more of the parameters by which competition in the relevant market is determined.

CA Paris, 7 March 2024, LawLex202400002244JBJ.

Competition Authority decision No 14-D-19 of 18 December 2014, LawLex201500001522JBJ: an exchange of information on extremely recent data (prices, pre-formulated requests and offers of deviations, promotional operations, NIPs [new promotional instruments], negotiation process) and on turnover or general terms and conditions

Cass. com., 7 April 2010, LawLex201000000412JBJ, préc.

Competition Council decision No 88-D-20 of 10 May 1988, LawLex200200002275JBJ. See, for generalized exchanges of information over several years, Competition Council decision No. 03-D-17 of 31 March 2003, LawLex200300001077JBJ.

CA Paris, 16 November 2023, LawLex202300013688JBJ.

Competition Council decision No 88-D-13 of 15 March 1988, LawLex200200003127JBJ. 

Competition Council decision No of 31 March 2003, LawLex200300001077JBJ, for an exchange of information on an oligopolistic market; No. 03-D-45 of 25 September 2003, LawLex200300003658JBJ, implementation of an exchange of information on prices and time-to-market of products between competitors who together hold more than 89% of the market; No 17-D-20 of 18 October 2017, LawLex201700001688JBJ, a highly concentrated market, in which two of the participants alone hold between 65 and 85% of the market share; CA Paris, November 16, 2023, LawLex202300013688JBJ, for an exchange on the restaurant voucher market, a highly concentrated oligopolistic market.

Competition Authority decision No 14-D-19 of 18 December 2014, LawLex201500001522JBJ, upheld by CA Paris, 27 October 2016, LawLex201600001790JBJ; Competition Authority decision No 17-D-03 of 27 February 2017, LawLex201700000385JBJ.

Competition Authority decision No 14-D-19 of 18 December 2014, LawLex201500001522JBJ; upheld by CA Paris, 27 October 2016, LawLex2016001790JBJ, above. Also see  CA Paris, 14 April 2016, LawLex201600000828JBJ.

Competition Authority decision No 15-D-19 of 15 December 2015, LawLex201500001733JBJ.

Case C-204/00 P Aalborg Portland and Others v Commission [2004], ECR I-123, LawLex200400000024JBJ.

French Competition Law

297. Conditions for prohibition

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297. Conditions for prohibition

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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