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

In its broadest sense, competition law ensures both free and fair trade. It comprises two main bodies of rules, which are very different, even contradictory. The first, competition law in the strict sense, protects competition on the market and opposes anticompetitive practices (restrictive agreements and abuses of dominance) or mergers that suppress or reduce competition. The second, made up of a …

Restrictive agreements and abuse of dominance in French competition law

In its broadest sense, competition law ensures both free and fair trade. It comprises two main bodies of rules, which are very different, even contradictory. The first, competition law in the strict sense, protects competition on the market and opposes anticompetitive practices (restrictive agreements and abuses of dominance) or mergers that suppress or reduce competition. The second, made up of a disparate set of provisions, is designed to prevent the wrongful conduct of undertakings that adopt prejudicial behavior towards their competitors or partners, without undermining the functioning of the market itself. They protect competitors, not competition. Such actions are likely to constitute acts of unfair competition or, according to the French classification, restrictive practices.

Strictly speaking, competition law is not, in principle, concerned with fair competition. Inspired by U.S. antitrust law, its sole purpose is to combat monopoly or market power, i.e. the ability of an undertaking or group of undertakings controlling a relatively large share of the market to drive up prices by reducing the quantities on offer and thus directing consumers to turn to other goods, at the risk of wasting scarce economic resources. Beyond the proper functioning of the market, economic efficiency and consumer well-being are therefore at stake. Competition law is neutral with regard to the distribution of resources between different operators and is devoid of any concern for fairness. It pursues no objective of distributive justice, and aims only to increase the economy's overall surplus. Nor does it aim to favor any particular economic agent (e.g., the small business versus the large retailer, or the presumed weaker party in a contract). The presupposition of classical competition ideology is in effect that the optimal market situation results purely from the  application of price theory and its legal consequence, the fight against monopoly power.

At the heart of competition law lies the law of restrictive agreements and abuses of dominance.

Although the antecedents of competition law can be traced back to the Allarde Decree of 14 March and 17 March 1791, reinforced by Article 419 of the French Criminal Code, which penalized alliances between distributors of the same goods with a view to lowering prices, the first comprehensive regulation of competition did not appear until after the Second World War. At the time, competition law was conceived entirely as an instrument of national economic policy, and more specifically of pricing policy. The Decree of 9 August 1953, replaced by that of 24 June 1958, introduced into Ordinance No 45-1483 of 30 June 1945 on prices the prohibition of restrictive agreements and certain so-called individual practices. The Law of 2 July 1963 prohibited abuses of dominant positions. The Law of 19 July 1977 introduced an optional merger control system. Ordinance No 86-1283 of 1 December 1986, supplemented by the Decree of 29 December 1986, repealed the earlier provisions but drew formal inspiration from them. Ordinance No 2000-912 of 18 September 2000 repealed the 1986 ordinance and incorporated it into the Commercial Code. Book IV of the legislative and regulatory parts of the Code, entitled “De la liberté des prix et de la concurrence” (On freedom of pricing and competition), is entirely devoted to competition law. Title II deals with anticompetitive practices. Since the 1986 ordinance, French competition law has been amended by more than ten laws, four of which were intended to be comprehensive reforms (the Galland law of 2 May 1996, the NRE law of 4 May 2001, the Dutreil law of 2 August 2005 and the LME law of 4 August 2008). Most of the reforms concerned restrictive practices law, merger control and competition procedure. The law on restrictive agreements and abuse of dominance has only been slightly altered, with limited practical impact. This is the case of the sector reforms resulting from the Law of 20 November 2012, which introduced a ban on import exclusivities in overseas territories in the new Article L. 420-2-1, and the Law of 29 December 2016, which introduced a ban on exclusivity agreements between central reservation agencies and passenger transport service providers in new Article L. 420-2-2. In a body of law that is constantly undergoing reform, the law on restrictive agreements and abuses of dominance thus appears to be the most stable and coherent set of rules. Substantive developments in the law on restrictive agreements and abuses of dominance are therefore more the result of the Competition Authority's decision-making practice and the case law of the Paris Court of Appeal and the Court of Cassation's Commercial Chamber.

French Competition Law

231. Restrictive agreements and abuse of dominance in French competition law

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Les notions juridiques connexes

231. Restrictive agreements and abuse of dominance in French competition law

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les notions juridiques connexes

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