All concerns
Antitrust: limiting contracts and supremacy
The FCA’s antitrust enforcement activity, aside from cartel enforcement, covers limiting contracts under Article L.420-1 of the French Code of Commerce or Article 101 of the TFEU, and abuse of supremacy under Article L.420-2 of the French Code of Commerce or Article 102 of the TFEU. In addition, the FCA is likewise in charge of approving unjustified special imports in the French abroad areas.
i Significant cases
In February 2022, the FCA fined a business for abusing its dominant position in the air freight transportation of family pets to Polynesia sector.15 In this case, Goldenway International Pets (GIP) had actually connected its quarantine services with its transportation and chartering organisation ones. More exactly, anyone wanting to send its animal to French Polynesia from mainland France is de facto required to have it go through quarantine in the GIP station, as it is the only mainland quarantine station authorised by the Polynesian authorities. This reality was not, obviously, the objection informed to GIP: the informed objection was certainly the reality that the latter connected this responsibility with (1) its roadway transportation services from the quarantine station to Roissy-Charles de Gaulle airport and (2) its flight organisation services, so that animal owners had no option however to utilize GIP for these 3 services. Historically, GIP had actually constantly declined to separate these 3 various services, regardless of duplicated demands from consumers and contending business (i.e., freight forwarders). According to the FCA, this connecting practice produced a take advantage of result that enabled GIP to experience no competitors either in the transportation of animals to Roissy-Charles de Gaulle airport and in the organisation of air cargo transportation to French Polynesia. GIP did not challenge the truths and gained from the settlement treatment, which led the FCA to provide a €65,000 fine (taking into consideration the reality that GIP had actually proposed a dedication to release and disperse a summary of the FCA’s choice to consumers, air providers, freight forwarders and Polynesian authorities to remember the illegality of connecting practices, at its own expense).
In the very same month, the FCA fined EDF for having actually abused its dominant position in the electrical energy sector from 2004 to 2021.16 In this case, the FCA thought about that EDF utilized the information from its client files qualified for the controlled electrical energy tariffs (TRV), in addition to the business facilities committed to the management of the TRV agreements, in order to establish the marketing of gas market deals and energy services, and to transform a big part of its consumers at the turning point of completion of TRV for part of the expert consumers. The FCA specified that ‘the unbiased pursued was to keep its market share in the electrical energy supply sector and to enhance its position in the associated gas supply and energy services markets’. As relates to the procedural elements of the case, EDF asked for and gained from the settlement treatment, which led the FCA to enforce a fine of €300 million. In order to identify this quantum, the FCA considered the reality that EDF had actually used 2 dedications: (1) offering its TRV Bleu client file to alternative electrical energy providers requesting it and (2) separating telephone membership courses of consumers and potential customers at TRV Bleu and consumers and potential customers at market deals.
In October 2022, the FCA fined EssilorLuxottica for having actually carried out inequitable trade practices in the optical lenses sector from 2009 to 2020.17 In this case, the FCA discovered that Essilor had actually abused its dominant position by carrying out an inequitable business policy focused on impeding the advancement of online sales sites in France, mostly those providing a combined or totally online deal. More exactly, to avoid online sales sites from providing its top quality lenses to customers, Essilor declined to provide top quality lenses to them, and restricted them from utilizing its hallmarks and logo designs, and from interacting on the origin of the lenses. Essilor likewise carried out service warranty constraints on online sales operators, by stating in its basic regards to sale that its presumption of duty for the adjustment service warranty was conditional on the seller’s compliance with a measurement procedure developed solely for in-shop sales. According to the FCA, these practices ‘restricted customer access to an alternative sales channel and kept rates high’. In light of these aspects (and particularly taking into consideration the prolonged duration of the violation and the reality that Essilor is a worldwide group that is the leader in its field), the FCA fined Essilor €81 million for inequitable trade practices.
In the very same month, the FCA fined Gaz de Bordeaux for having actually abused its dominant position on the gas supply market in Bordeaux.18 In this case, the FCA thought about that Gaz de Bordeaux abused the resources at its disposal as a civil service to establish its competitive activity. In other words, the FCA discovered that Gaz de Bordeaux abused its facilities and the business resources connected to its civil service activity in its capability as a provider of gas at the controlled sales tariff (RST), to establish its market provides. More exactly, throughout the 3 years preceding completion of the RST, Gaz de Bordeaux utilized the technical and personnels arising from its civil service activity to methodically direct customers towards market deals, intentionally not revealing the presence of the RST deal (e.g., from 2019, the RST deal was no longer available on the Gaz de Bordeaux website and Gaz de Bordeaux’s sales groups hid its presence, hence leading almost all brand-new consumers to sign up for market deals). According to the FCA, Gaz de Bordeaux produced confusion in between its civil service activity and its competitive activity in a sector in which customers were not well notified, and, as an effect, misshaped the competitive performance of the marketplace. In view of all these aspects, the FCA fined Gaz de Bordeaux €1 million, and bought the latter to release a summary of its choice on its website for 3 months.
In December 2022, the FCA fined a provident organization for having actually abused its dominant position on the marketplaces for cumulative additional social defense for home entertainment employees.19 In this case, the FCA fined Audiens Santé-Prévoyance (Audiens SP) for utilizing its brand name image and the resources and information available to it in connection with its activities of additional social defense for home entertainment employees to establish the activity of its subsidiary Movinmotion, which is active on the marketplace for payroll management services for home entertainment employees. More exactly, the FCA discovered that Audiens SP abused its dominant position by carrying out 2 kinds of abuses: (1) by allowing its subsidiary Movinmotion to utilize its brand name image and credibility, it produced confusion in companies’ minds in between its quasi-monopoly activities and its other competitive activities; and (2) by utilizing the information available to it in relation to its quasi-monopoly activities to assist in the marketing of its subsidiary’s deal of payroll management services for home entertainment employees (cross-usage of customers databases), it provided the latter a competitive benefit that its rivals might not reproduce. As for the procedural elements of the case, Audiens SP did not challenge the truths and gained from the settlement treatment, which led the FCA to enforce a fine of €800,000.
In the very same month, the FCA fined a business for having actually abused its dominant position on the marketplace for roadworthiness tests for durable cars in Guadeloupe.20 The FCA fined 2 various sort of anticompetitive practices: (1) inequitable practices versus business in the associated market for the preparation of roadworthiness tests for durable cars in Guadeloupe, to the advantage of its sibling business active on this market; and (2) extreme rates practices carried out thanks to the monopoly position it held in between 2010 and 2018 on the marketplace for roadworthiness tests for durable cars in Guadeloupe (being defined that the extreme rates practices themselves were carried out in between 2013 and 2018 just). With regard to the inequitable practices, the FCA discovered more particularly that the fined business had actually presented 2 rates for its services (i.e., a typical cost and an affordable one, the latter being conditional on requirements that just its sibling business had the ability to fulfill). It had actually likewise given longer payment instalments and much shorter appointment times to its sibling business, which it did not give to the latter’s rivals. As for the procedural elements of the case, the prosecuted business did not object to the truths and gained from the settlement treatment, which led the FCA to enforce a fine of €25,000.
As for the courts, this year saw the Paris Court of Appeal judgment in the Apple case. Originally, the FCA released a choice in 2020, by which it fined Apple €1.1 billion for having actually carried out 3 anticompetitive practices within its circulation network: (1) items and consumers allotment in between its 2 wholesalers; (2) resale cost upkeep; and (3) abuse of a circumstance of financial dependence.21 The primary concern occurring from this case was whether the FCA’s presentation of the presence of a resale cost upkeep practice was adequately strong with regard to the requirement of evidence needed by the Paris Court of Appeal. The latter certainly reversed the FCA’s choice in this regard, evaluating that ‘the body of proof on which the FCA relied did not develop unquestionably, due to the accurate, financial and legal context, the presence of a cost suggestion of a binding nature’. In in this manner, the Paris Court of Appeal highly remembered that the requirement of evidence as relates to resale cost upkeep practices is rather high, as both the provider’s invite to execute its rates policy and the approval of such policy by its suppliers need to be shown with no uncertainty. The Paris Court of Appeal discovered that the resale cost upkeep practice was not developed, and the quantity of the great given out by the FCA was appropriately divided by 3.22
ii Trends, advancements and strategiesRejection of a grievance for absence of enough proof
The reawarding to Amazon of the broadcasting rights for Football League 1 formerly held by Mediapro led Canal+ Group (GCP) and beIN Sports France to lodge a grievance prior to the FCA. The plaintiffs preserved that by approving the rights in concern to Amazon for the 2021–2022 to 2023–2024 seasons for €250 million per season, the Professional Football League (LFP) had actually devoted discrimination as, at the very same time, they stayed constrained to transmit batch 3 matches, obtained in 2018 for €332 million per season. The FCA, nevertheless, discovered that the details supplied by GCP and beIN was not, in this case, enough to conclude that the LFP had actually abused its dominant position by treating them in a different way from Amazon in the treatment for reawarding the Mediapro batches and not choosing their quote over that of Amazon. The FCA remembered, as it had actually already shown in its 2021 choice,23 that beIN and GCP might not declare that they had actually been victimized as they held batch 3 of the 2018 require tender, which had actually been divested properly for a four-year duration with a properly carried out agreement. The FCA hence declined the latter’s problems on the benefits of the case and, as an outcome, their associated ask for interim steps.24
Accepting dedications from GAFAM business
2022 was marked by increased settlement in between the FCA and the 5 ‘huge tech’ business (Google (Alphabet), Apple, Facebook (Meta), Amazon, Microsoft – GAFAM), to end practices carried out by a few of them that may be anticompetitive. The FCA accepted Meta’s dedications to stop some practices on the French market for non-search-related online marketing.25 This was the very first time that a competitors authority accepted dedications from Meta in antitrust procedures. In addition, the FCA accepted Google’s dedications to develop a structure for working out and sharing details required for the transparent evaluation of associated rights’ reimbursement.26 According to Benoît Cœuré, these dedications will, for the very first time in Europe, ‘offer a vibrant structure for settlement and sharing of the required details for a transparent evaluation of direct and indirect associated rights’ reimbursement’.27
iii OutlookAntitrust and digital policy
The Digital Markets Act (DMA) works in May 2023. As it supplies that ‘the meaningful, reliable and complementary enforcement of available legal instruments used to gatekeepers needs cooperation and coordination in between the Commission and nationwide authorities within the remit of their proficiencies’,28 it is clear the FCA will need to help the EC with the workout of its powers under the Act. It stays to be seen how this will happen in practice.
