Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
Global Competition Law also provides insight into possible future developments in the field.

Global Competition Law

According to Article L. 442-3, clauses or contracts providing for retroactive rebates or automatically granting to a co-contractor the more advantageous terms granted to competing undertakings are considered null and void.
In addition, obtaining a benefit without consideration or which is manifestly disproportionate to the service rendered (Article L. 442-1(I)(1)); imposing or attempting to impose …

Sanctions in the case of abuse of dependence

According to Article L. 464-2(I) CC, the Competition Authority may order the cessation of anticompetitive practices within a certain time-limit, modify or withdraw a specific clause in a contract.

Law No 2012-1270 of 20 November 2012 introduced in Article L. 752-27 CC a specific structural injunction allowing the Competition Authority to intervene to order all necessary and proportionate measures for the restoration of effective competition in the retail trade sector in the overseas territories. Under the procedure in place, the Authority may inform an undertaking or group of undertakings in a dominant position of its competition concerns due to the high prices or margins that that position allows it to charge (compared with averages noted for the sector). The undertaking then has a period of two months in which to propose commitments to the Authority. If the undertaking does not offer any commitments or if the proposed commitments are not likely to put an end to the competition concerns, the Authority may order it to modify its contracts or its behavior and, where these measures are not sufficient to restore effective competition, to dispose of some of its assets.

Cease and desist orders

The Authority may impose a fine immediately as regards the conduct complained of. Further failure to respect an injunction ordered by the Authority may also be the subject of a fine. The fine may be up to 10% of the highest worldwide pre-tax turnover during one fiscal year preceding the one where the prohibited practices have been implemented (Article L. 464-2, I, Commercial Code).

Fines

A leniency program for prohibited agreements and abuses of dominance, similar to those existing under EU and US law is provided for by Article L. 464-2(IV) of the Commercial Code. It is aimed at encouraging parties to an anticompetitive practice to freely report their practices to the authorities in order to get partial or total immunity. The exoneration is granted by the Authority on the request of the rapporteur général or the Minister of the Economy.

Two situations can be distinguished: cases where the Authority has no information and cases where it already has information. In the first case (Type 1A immunity), conditional immunity is granted to the first undertaking to provide evidence that the Authority did not previously have in its possession and which is sufficient to establish the suspected infringement and proceed with the investigation. In the second case (Type 1B immunity), total exemption will be granted if three conditions are fulfilled: the undertaking must be the first to provide sufficient information to establish the alleged infringement, the Competition Authority does not dispose of sufficient evidence at the time of the leniency application, and no other undertaking has obtained a conditional opinion granting immunity. Undertakings not satisfying the aforementioned requirements may however benefit from partial immunity (Type 2 immunity) where they come forward with proof of significant added value with regard to elements already in the Competition Authority's disposition. Since the 2015 Communiqué (which was amended on 15 December 2023), type 2 immunity fine reduction ranges are provided to increase the undertakings' certainty: 25-50% for the first undertaking, 15-40% for the second one and up to 25% for the last one (for further details, practitioners should refer to the Competition Authority's Communiqué of 15 December 2023). 

Leniency

Infringement by a natural person of the provisions on anticompetitive agreements and abuse of dominance, with the exception of abusively low pricing, may be punished by up to four year's imprisonment and a fine of EUR 75,000 (Article L. 420-6 CC).

Criminal sanctions

According to Article L. 442-3, clauses or contracts providing for retroactive rebates or automatically granting to a co-contractor the more advantageous terms granted to competing undertakings are considered null and void.

In addition, obtaining a benefit without consideration or which is manifestly disproportionate to the service rendered (Article L. 442-1(I)(1)); imposing or attempting to impose on the other party obligations creating a significant imbalance in the rights and obligations of the parties (Article L. 442-1(I)(2)) or sudden termination of established commercial relationships (Article L. 442-1(II)), may give rise to a tort action before the specialized courts, which have exclusive jurisdiction as regards abuse of dependence (Articles D. 442-2 and D. 442-3 CC). 

The Minister of the Economy, who is empowered to bring actions before the courts, and the public prosecutor may request the repayment of the sums illegally paid and bring an action for damages in lieu of the victims. They may also request civil fines of up to EUR 5 million, which may be increased by up to three times the amount of the unlawfully received payment or, in proportion to the advantages obtained from the practice, up to 5% of the undertaking's annual turnover. 

Infringements of the provisions on below-cost selling (Article L. 442-5 CC) are also punishable by a fine of EUR 75,000 for natural persons, and EUR 375,000 for legal entities. Minimum price fixing is also a criminal offense penalized by a fine of EUR 15,000 (Article L. 442-6 CC).

The Hamon Law on consumer protection of 17 March 2014 has empowered the DGCCRF to issue injunctions and impose adminstrative fines. Article L. 470-1 of the Commercial Code lays down the power to issue injunctions: agents authorized within the meaning of Article L. 450-1(II) can, “following adversarial proceedings, enjoin any trader, to comply, within a reasonable time period, with its obligations, to cease any wrongdoing or remove any unlawful clause”. The provisions then goes on to confer on “the adminstrative authority for competition and consumer affairs” the power to impose "administrative fines sanctioning failure to comply with injunctions (up to EUR 3,000 for natural persons and EUR 15,000 for legal entities).

Violation of the prohibition on benefitting from price reductions, rebates, discounts for the purchase of fresh fruit and vegetables pursuant to Article L. 443-2 of the Commercial Code is subject to an administrative fine not exceeding EUR 15,000 for natural persons and EUR 75,000 for legal entities, as is the violation of the obligation to present an order form or a contract for fresh fruit and vegetables intended for sale or resale to a trader established in France pursuant to Article L. 443-3 of the Commercial Code.

An administrative fine not exceeding EUR 75,000 for natural persons and EUR 2 million for legal entities is imposed for the violation of the provisions relative to deadlines and means of calculation of the periods provided for in Article L. 441-10 of the Commercial Code, as well as all clauses and practices having as their effect the unfair delaying of the starting point of payment deadlines and breaches of the provisions of Article L. 441-11 of the Commercial Code relative to payment deadlines for perishable foodstuffs. An administrative fine not exceeding EUR 75,000 for natural persons and EUR 375,000 for legal entities may be imposed for failure to conclude a single commercial agreement compliant with the requirements of Article L. 441-3 or Article L. 441-4 (agreements for mass market consumer goods) of the Commercial Code; failure to conclude a re-negotiation clause in compliance with Article L. 441-8 of the Commercial Code, or to respect its terms, or undermining production or business secrecy during negotiations.

Global Competition Law

287. Sanctions in the case of abuse of dependence

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Les notions juridiques connexes

287. Sanctions in the case of abuse of dependence

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

Les notions juridiques connexes

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