I Introduction

Article L420-2 of the French Commercial Code provides for the prohibition of abuses of a dominant position and abuses of economic dependence under French law. Article L420-4 of the Commercial Code, however, provides for exemptions from the prohibition of Article L420-2 when the practices at stake result from a regulation or if they have the effect of achieving economic progress – including creating and maintaining employment – while reserving for consumers a fair share of the resulting benefits and without allowing an undertaking to eliminate competition in respect of a substantial part of the products in question. The exemption is rarely applied in practice. Another relevant provision is Article L420-5 of the Commercial Code, which prohibits abusively low prices to consumers. Abusively low pricing, as defined by Article L420-5, can only be applied to products and services sold to final consumers, but may be found to exist even when the infringing company is not in a dominant position and the victim is not in a situation of economic dependence. Article L420-5 has only been applied in rare cases.

The French Competition Authority (FCA) has jurisdiction over abuse of dominance practices. As an independent administrative body, the FCA may investigate abuse of dominance cases and impose fines of up to 10 per cent of the infringing companies’ worldwide turnover. The FCA has not issued formal guidance on the way in which it applies Article L420-2 of the Commercial Code. The European Commission’s guidance on Article 102 TFEU (formerly Article 82 of the EC Treaty), however, provides useful indications as to how Article L420-2 is applied in France.2 French judges can also directly apply the relevant provisions of the Commercial Code concerning abuse of dominance in the context of civil or commercial litigation.

II Year in Review

In 2017, the FCA issued 19 decisions on the basis of Article L420-2 of the Commercial Code. The FCA imposed fines in four cases of a total of €125.4 million,3 two of which were the result of a settlement.4 The FCA did not, however, grant any interim measures. Six claims were rejected at a preliminary stage due to lack of supporting evidence,5 and the FCA dismissed three other cases.6 In two of these cases, the FCA noted that it did not have jurisdiction to rule on part of the alleged abusive practices.7 Finally, contrary to 2016, when no commitment decision was issued, the FCA issued five commitment decisions in 2017,8 and imposed behavioural remedies in one case.9

The most noteworthy decisions in the past year are the following.

In Engie,10 the FCA imposed a €100 million fine on Engie, the French incumbent gas operator, following a complaint by Direct Energie and consumer association UFC-Que Choisir alleging that Engie abused its dominant position in the gas markets to induce its customers to switch to its market-based gas and electricity contracts. The FCA found in particular that Engie had used its historical data file, as well as other means of leveraging its incumbent operator’s status and resources, to convert its customers on regulated gas tariffs to market-based contracts for gas and electricity. Engie did not challenge the objections and settled the case. A few months later, following another complaint by Direct Energie, Engie committed to change its pricing policy and certain terms of the contracts concluded with common hold associations to ensure better competition on the retail gas supply and individual metering for collective supply markets.11

In Janssen-Cilag, 12 following a complaint of the pharmaceutical laboratory Ratiopharm (now Teva Santé) that was ultimately withdrawn, the FCA imposed a €25 million fine on pharmaceutical company Janssen-Cilag and its parent company for having abused its dominant position on the French markets for Fentanyl transdermal patches sold in cities and hospitals. The FCA found that Janssen-Cilag repeatedly tried to convince the AFSSAPS (the French agency for medical safety of health products) to refuse to grant the generic status to products competing with its Durogesic drug, a powerful analgesic containing an active substance called Fentanyl commercialised by Janssen-Cilag, despite this status having been obtained at the European level. The FCA also considered that Janssen-Cilag implemented a disparagement campaign among healthcare professionals using misleading language to create doubts regarding the effectiveness and safety of the generics.

In Petanque balls,13 the FCA imposed a fine of €320,000 on Obut, the leading French manufacturer of petanque balls, for having abused its dominant position by imposing resale prices on some of its distributors to protect its own sales outlets. Obut did not challenge the facts before the FCA and was therefore granted a fine reduction.

In Office waste,14 the FCA analysed dominance concerns raised by the conduct of La Poste, the French postal group. The FCA was concerned that La Poste was using competitive advantages linked to the universal postal service in the related non-hazardous office waste management sector and by the predatory nature of La Poste’s pricing policy for services in the collection of non-hazardous office waste. La Poste offered commitments to alleviate the FCA’s concerns. Interestingly, the FCA faced an unprecedented situation since it had to analyse the commitments parallel with the merger control review of a full-function joint-venture between La Poste and Suez in the same sector that was announced on the same day as the launch of the market test for the commitments. The FCA ultimately accepted the commitments and cleared the proposed transaction on the same day, subject to the same commitments.

Finally, it is worth mentioning that the FCA fined for the first time a company on the basis of Article L 464-2 Paragraph V of the Commercial Code, which provides that the FCA can impose a fine of up to 1 per cent of the global turnover of a company that obstructs its investigation. In Brenntag,15 the FCA fined Brenntag SA and Brenntag AG €30 million for having provided incomplete, imprecise and outdated information to the FCA, and having withheld some information and documents requested by the FCA in the context of an investigation on possible anticompetitive practices, including abuse of dominance allegations such as predatory pricing.

III Market Definition and Market Power

Under French law, as under EU law, regulators and judges must typically start their analysis by defining the relevant markets where the alleged practices took place. They then analyse whether a situation of dominance (single or collective dominance) or of ‘economic dependence’ can be established in the relevant market before assessing the existence of an abuse.

i Market definition

The FCA mostly relies on qualitative criteria, although it may also rely on an econometric analysis to define relevant markets. To assess demand-side substitutability, the FCA takes into account the nature and use of a product, the price differences between similar products, consumer preferences, the legal environment, the brand image of the products and the distribution channels. If the data is available, the FCA may also use quantitative techniques such as cross-elasticity of demand to delineate product markets. In Janssen-Cilag,16 the FCA found that Fentanyl transdermal patches applied on the skin of patients, such as the Durogesic drug and its generics, were not substitutable with other Fentanyl specialities administered through other modes as they did not have the same therapeutic indication. In addition, the FCA distinguished the market for Fentanyl transdermal patches sold in cities from the market for Fentanyl transdermal patches sold in hospitals since prices in cities are regulated by the government, while prices in hospitals are freely established; and in cities, the demand for Fentanyl transdermal patches comes from wholesalers and pharmacies, while in hospitals, it comes from public hospitals and private clinics.

In situations where there are complementary products (e.g., hardware and consumables or maintenance services), the FCA determines, based on a combination of qualitative and quantitative criteria, whether a single market exists for both or whether the products form distinct product markets. In Nespresso,17 the FCA defined a ‘primary’ market for espresso-pod coffee machines and a distinct ‘secondary’ market composed only of coffee capsules compatible with Nespresso coffee machines. The FCA found that espresso-pod coffee machines and coffee capsules did not belong to the same product market because coffee machines and coffee capsules are not bought simultaneously, necessarily bought at the same shops, and manufactured and marketed by the same firms; and an internal document of Nespresso considered that the two products were separate. The FCA also found that the secondary market should be narrowly defined as only including coffee capsules compatible with Nespresso machines, because users of Nespresso machines were not in a position to use any other kind of capsule.

In Schneider Electric,18 the FCA found that the distribution and the maintenance of electrical distribution equipment constituted separate markets and identified potential primary markets for the supply of medium and low-voltage electrical distribution equipment; secondary markets for the supply of spare parts for Schneider Electric electrical distribution equipment, on which Schneider Electric was likely to hold a dominant position; and potential secondary markets for maintenance services provided on Schneider Electric equipment.

Supply-side substitutability also constitutes a relevant criterion for market definition. In Mobile telephony,19 the FCA found that each operator held a monopoly on the wholesale market for the termination of voice calls on its own network because, inter alia, of the lack of supply-side substitutability, as only the terminating operator is capable of localising the recipient of the call. The Court of Appeal followed the same reasoning.20 In Scratch cards,21 the FCA found that the market for games sold by Française des Jeux (FDJ), the state-owned company exclusively in charge of gambling and sports betting services in France, was distinct from the casino games market in light of the different sociological profiles and gambling behaviours of gamers. The FCA also took into account the lack of supply-side substitutability to define separate markets, noting that casinos in France are all located along the coast or near cities that attract tourists and can only serve local demand while the FDJ sells its games through 40,000 retail stores deployed across the national territory.

As regards the geographic dimension of the market, the FCA typically determines the area where the conditions of competition are homogeneous. It analyses, for example, the specific geographical features and transportation costs to delineate geographic markets. In Sugar beet,22 the FCA considered that the sugar beet procurement market had a local dimension, as sugar refineries that collect and process sugar beet are generally located near production areas due to the perishable nature of the products and the relatively high transportation costs of sugar beet. The FCA also uses a SSNIP test approach (i.e., the relevant geographic market is defined as the area in which a company can use its market power or monopoly power to, for example, raise prices profitably without being constrained by other players located in other areas or from other product lines).23 In Funeral services in the Ain department,24 the FCA found that the wholesale market for cremation services offered to funeral directors and the retail market for funeral products and services proposed to grieving families in the Ain department were limited to a 30-kilometre radius around the chief town of the department, Bourg-en-Bresse, as families usually prefer having funerals close to their homes. In this regard, the FCA noted that this conclusion was confirmed by the fact that the significant price increases implemented by the Viriat crematorium did not lead customers to go to more distant crematoria of the department.

ii Single dominance

Dominance is achieved when a company can determine its pricing policy in the relevant market independently from its competitors and customers.25 The FCA typically considers that market shares above 50 per cent are a strong indicator of market power.

To establish single dominance, the FCA also examines the following criteria in addition to market shares:

  1. the countervailing market power of competitors;
  2. the intensity of competition on the market;
  3. the existence of potential new entrants; and
  4. the specific advantages of the leading firm (e.g., brands, organisation, better products or services).

In Pet food,26 Royal Canin, which held a market share limited to 40 per cent, was considered to be a dominant player, because the second and third-largest competitors respectively held a 12 and 7 per cent market share; Royal Canin had a very good brand image bolstered by high advertising expenses and regular contact with prescribers; and the relevant market was characterised by high barriers to entry. In Archaeology,27 the National Institute of Preventive Archaeological Surveys (INRAP), a public administrative body that benefits from a monopoly in the preliminary archaeological diagnosis survey market (along with other archaeology departments of local and regional public entities) also in charge of preventive archaeology research in competition with other private actors, was considered to be a dominant player on the national market for preventive archaeological excavations in light of its market share. Interestingly, although its market share in value was below 50 per cent and its competitive position had deteriorated over the years with the opening to competition of the market in 2003, the FCA noted that the fact that INRAP’s market share was higher in value (more than 58 per cent) than in volume constituted evidence that it had greater financial leeway than its competitors. The FCA also highlighted the fact that INRAP remained a central player of the sector due to its monopoly position on the national preliminary archaeological diagnosis related market and its strong reputation inherited from its former monopoly position on the national market for preventive archaeological excavations.

In Petanque balls,28 the FCA essentially relied on Obut’s very high market share (more than 80 per cent) and its strong brand reputation in the sector to find that the operator was dominant. On the contrary, in Nasse Demeco,29 the FCA found that market shares below 30 per cent together with the presence of other powerful groups on the markets for moving of individuals, business transfers and international relocation, precluded the Authority from finding that the Nasse group held a dominant position on these markets.

Finally, in Auction sales,30 the FCA considered that the Drouot group’s ability to exercise market power on the Parisian venue rental market for non-legal auction sales could not be demonstrated in light of the significant bargaining strength of its customers, who are able to easily switch to competing venue renters or choose to vertically integrate venue rental services, and in light of the fact that the majority of Drouot’s capital is held by its customers, enabling them to influence the commercial terms and conditions offered to them by the Drouot group.

iii Collective dominance

Collective dominance may result from structural links between undertakings, whether capitalistic or contractual, from the market structure, or from both. In the absence of structural links, the FCA applies the cumulative Airtours criteria (i.e., oligopolistic market, significant market transparency, possibility to engage in retaliation and absence of countervailing power from the fringe players).31

In Saint-Pierre-et-Miquelon,32 the FCA imposed a total fine of €381,400 on companies active in the aggregates market in the archipelago of Saint Pierre and Miquelon for anticompetitive agreement and abuse of a collective dominant position. In particular, the FCA found that four undertakings held a collective dominant position as:

  1. they together held an 86 and 88 per cent market share in the upstream and downstream markets for the production and sale of aggregates respectively;
  2. they had structural links through the operation of a common quarry and had adopted a common strategy;
  3. deviation would be unlikely given their historical links;
  4. entry barriers were high; and
  5. there were no alternative competitors.33

Although collective dominance cases are rare (there have been only three cases since 2000),34 the FCA’s decisional practice shows that it tends to resort to collective dominance when it lacks evidence to support a claim of explicit collusion.

iv Economic dependence

Economic dependence is a specific infringement under French competition law, which has no equivalent in EU competition law. Pursuant to Article L420-2(2) of the Commercial Code, abuse of economic dependence of a customer or supplier is prohibited when it is likely to affect competition on the market. This provision was originally drafted to protect suppliers from large retail chains (i.e., supermarkets), but is in practice applied essentially when invoked by resellers confronted with situations of refusal to supply and discrimination.

According to established case law, economic dependence arises when a company is forced into a commercial relationship with another company because it cannot purchase substitutable products under similar terms and conditions, or sell its products to other customers. The FCA examines the following cumulative criteria:

  1. the commercial partner’s brand notoriety;
  2. the commercial partner’s market share;
  1. the commercial partner’s share in the turnover of the dependent company; and
  2. the possibility for the dependent company to find an alternative commercial partner.35

IV Abuse

i Overview

Article L420-2 of the Commercial Code specifically mentions a number of abuses, including refusal to supply or deal, tying, discriminatory practices or abuse of economic dependence. However, the list is not exhaustive.

The FCA relies on a ‘by object’ approach to abuses of a dominant position or of economic dependence. It considers that abusive conduct may be found even in the absence of an actual effect on the market. Attempts to abuse a dominant position may, thus, in certain cases also be challenged. In SNCM,36 the court considered that a ferry line operator between Corsica and Marseilles abused its dominant position by submitting a global and indivisible (i.e., island-to-continent) offer to the call for tenders launched by the Corsican Transport Office, while its competitors submitted point-to-point (i.e., harbour-to-harbour) bids as required by the request for proposals. By doing so, SNCM did not allow the tendering authority to compare bids on a point-to-point basis, and to allocate the contract between several ferry operators. Although the bidding procedure was ultimately declared void by the administrative courts and therefore the practice did not have any effect, the FCA fined SNCM for its attempted abuse of a dominant position.

ii Exclusionary abuses
Predatory pricing

Predatory pricing is a pricing strategy whereby a dominant firm offers below-cost prices, thereby incurring losses or forgoing profits in the short term in order to eliminate actual or potential competition. The FCA considers that the following two situations create a presumption of predatory pricing:

  1. when the dominant company’s prices are lower than the average variable costs (unless a company can convincingly explain that its behaviour did not result from a predatory strategy aimed at eliminating competitors); or
  2. when the company’s prices are between average variable costs and average total costs, and there is clear and convincing evidence that its behaviour is part of a predatory strategy aimed at eliminating competitors (the EU Akzo test).

French authorities use a slightly stricter, economics-based test compared to the European Commission’s approach: the presumption of predation is more easily rebuttable, and the FCA has to show that there is a realistic possibility of the dominant player recouping its losses. This may explain why, to date, there has been no successful precedent of predatory pricing.

In SNCF,37 the FCA held that the French rail operator pursued price-based exclusionary practices for its freight services activity by full-trainload because SNCF’s prices, although higher than direct average variable costs, were lower than the costs that would be avoided over a three-year period if SNCF terminated its freight services activity by full-trainload. Although SNCF’s pricing policy was not considered predatory, as the losses incurred by SNCF were sustainable and pre-dated the opening-up of the sector to competition, the FCA nevertheless considered that it was abusive. The Paris Court of Appeals, however, overturned this part of the decision, considering that charging prices superior to average variable costs but inferior to average total costs could only be considered abusive based on evidence that the dominant firm had made specific plans to exclude competitors from the market.38 In this case, the FCA had not sufficiently established the existence of an exclusionary strategy.

More recently, in Bottin Cartographes,39 following an opinion by the FCA, the Paris Court of Appeals dismissed a predatory pricing claim against Google. Bottin Cartographes, a competitor of Google, claimed that offering an enterprise mapping service free of charge constituted an abusive predatory strategy. In particular, Bottin Cartographes alleged that Google was not allowed to offer a free version of its software without monetising it with advertising or by revenues derived from a premium, paid-for version (a ‘freemium’ business model). In its opinion,40 later confirmed by the Court, the FCA reaffirmed that for multi-product companies, the predation test to be conducted is a modified Akzo test, where average variable costs are to be replaced by average incremental costs, and average total costs by long-run average incremental costs. In practice, the FCA found that the relevant costs were the costs borne by Google, rather than the costs borne by its less-efficient competitors, and the costs specifically associated with the allegedly abusive activity to the exclusion of common costs supported by Google in its capacity as a multi-service firm (in particular, the costs associated with the acquisition of the underlying maps were not relevant because Google would bear them in any event). Conversely, the FCA and later the Court confirmed that where a product is offered in different versions (one basic, free version, and one premium, paid-for version), the revenues to be taken into account are those associated with all versions of the product. On this basis, the FCA and the Court of Appeals dismissed Bottin Cartographes’ claim by noting that the econometric studies submitted by the parties showed that Google’s revenues exceeded the total relevant costs, and even if Google’s revenues could have been exceptionally lower than the corresponding average total costs, there was no evidence of a predatory strategy. On this last point, the FCA and the Court emphasised that it may be economically rational for Google initially to offer products and services for free in order to increase its number of users, and in any case, strong competition remained in the market, with a number of competitors – in particular, free open source solutions and other multi-product companies – that could not be foreclosed by Google’s behaviour. As a result, it would have been impossible for Google to recoup the potential losses, and as such no predatory strategy could be found.

In Gas market,41 nevertheless, the FCA imposed interim measures on Engie (the former incumbent operator on the French market for gas distribution) at the request of Direct Energie, which alleged that Engie implemented a price-below-cost strategy on its commercial offers intended for both individual and business customers. In particular, Direct Energie argued that Engie charged predatory prices by attributing some of its marketing and commercial costs, which are common to its competitive and regulated offers, to its regulated activities only. Given the risk that Engie would implement a predatory pricing strategy, and pending the investigation on the merits, the FCA ordered Engie to set the prices of its offers in such a way as to take into account all of the related costs incurred in the short-term for the sale of these offers, including commercial costs. The investigation on the merits did not, however, lead the FCA to impose a fine on Engie as the latter proposed measures to remedy the FCA’s concerns, leading the FCA to accept Engie’s commitments on September 2017.42 Following a market test and several rounds of amendments, Engie finally committed to:

  1. reinforce the reliability of its ex ante and ex post profitability analysis by implementing a verifiable cost structure and an internal monitoring process, which requires for instance that prices below the average incremental cost be approved by a person empowered within Engie to do so;
  2. set its prices above the average avoidable cost43 as identified in its ex ante profitability analysis; and
  3. reinforce its employees’ competition law training programme.

The commitments were entered into for three years, except for the commitment relating to prices offered to individual customers, which will last five years.

In Office waste,44 the FCA also accepted La Poste’s commitments to remedy predation concerns in relation to the collection by La Poste of non-hazardous office waste. In particular, the FCA found that La Poste, which has a dominant position on several national postal markets and is also active on related markets for waste collection and recycling, was likely to offer office waste management services at prices below incremental costs in light of the absence of any reliable tools recording certain cost items, such as those linked to the use of its postal communication tools and of its mail carriers to promote its waste management services. La Poste therefore committed to develop and use for price determination a cost assignment methodology that complies with the competition law rules, and in particular that values the use of its universal postal service to promote and deliver non-hazardous office waste collection services; and implement profitability monitoring.

However, in Ouibus,45 the FCA dismissed a complaint lodged by Transdev, a company operating in the coach transport sector, which had claimed that its competitor Ouibus was using cross-subsidies received from its parent company, SNCF (which benefits from a monopoly in the national railway passenger transport market), to offer predatory or exclusionary prices to customers on the market for interurban passenger coach transport that was recently opened to competition. In this regard, the FCA noted that the Akzo predation test had to be adapted in the context of an emerging market to take into account the fact that a company trying to expand on such market might seek to secure a return on its investment within a reasonable time rather than to recover all its costs at once, and that it may be that its prices will not fully cover its costs in the first few years of business. Despite losses incurred by Ouibus since the opening of the market, the FCA therefore concluded that Ouibus’s commercial policy was not, at this stage, part of a strategy aimed at eliminating its competitors.

The same cross-subsidies concern was raised in the Archaeology case,46 as the FCA feared that the absence of effective accounting and financial separation between INRAP’s public service missions and its competitive activities entailed a risk that public funds received as part of its diagnostic mission could be used by the institute to apply predatory or exclusionary prices in the competitive market for preventive archaeology excavations. This led INRAP to offer commitments in November 2016 to remedy this concern.

Leveraging practices

Leveraging practices consist of a dominant firm taking advantage of its superior market position on a ‘dominated’ market to expand its position in another related market.

In PMU,47 the FCA expressed concerns that the French legal monopolist for offline horse race betting leveraged its position to exclude competitors from the competitive market for online horse race betting. In particular, the FCA was concerned that by pooling together its online and offline bets, PMU could attract more bettors, discourage potential new entrants and, in time, drive competitors out of the market, since a greater pool of bets allows for more complex and diversified bets. The winnings on successful bets can also be significantly higher because there would be a greater pool of debts. The FCA accepted commitments from PMU to stop pooling its online and offline bets, and that online and offline activities would be kept separate. Although this could be interpreted as coming close to ‘an efficiency offence’, because horse racing bettors precisely look for the highest possible winnings (as in any lottery), the FCA justified its preliminary findings by stating that its decision was consistent with the public policy objective of limiting the risk of addiction to online betting.

More recently, in Passenger transport,48 the FCA accepted the commitments offered by SNCF to prevent its subsidiary Keolis from leveraging SNCF’s monopoly in the railway passenger transport market into the competitive market for the urban transport of passengers (i.e., bus, metro, tram). More specifically, the FCA was concerned that Keolis could rely on its parent company’s railway expertise to submit bids that are not replicable by competitors for the supply of advice and technical assistance to urban transport operators. To alleviate the FCA’s concerns, SNCF committed, in particular, that only its subsidiaries that are fully independent from its railway passenger transport activities would respond to calls for tender regarding technical assistance to urban transport operators. On the contrary, in Ouibus,49 the FCA rejected Transdev’s claim that Ouibus had relied on its parent company’s brand image, reputation and resources to gain an anticompetitive advantage that could not be reproduced by its competitors on the market for interurban coach transport market. In particular, the FCA considered that there was no evidence that Ouibus’s affiliation to SNCF had any significant impact on the decision of passengers to select a coach operator, and noted that the rapid growth of Flixbus, an operator unknown to the public before its entry on the market that then became the leader on the French coach market, suggests that such advantage is not likely to distort competition on the market.

In Scratch cards,50 the FCA also rejected a complaint by three casino associations that essentially claimed that FDJ had attempted to leverage its monopolistic position on the market of games sold by the FDJ into that of casino games by selling more and more scratch cards displaying similar marketing terms and graphic charts to the ones found on slot machines and in casinos, thus generating customer confusion regarding these different types of games. However, the FCA found that the claimants had failed to show evidence supporting the existence of a nexus between the market of games sold by FDJ and the casino games market where FDJ is not active, as both markets do not have the same suppliers and customers and have very different operating modes. In the absence of the requisite nexus between the two product markets, the FCA dismissed leveraging allegations.

On the contrary, in Office waste,51 the FCA found that there was a clear nexus between, on the one hand, upstream waste collection markets and the downstream waste recycling market and, on the other, between waste collection markets and postal services, as the latter are offered to the same customers, on the same occasion (during mailmen rounds), and rest on the use of the same network of mail workers. In light of this nexus, the FCA considered that there was a risk that La Poste could rely on its universal postal services to promote its office waste management services to gain a competitive advantage that could not be reproduced by its competitors on the waste collection and recycling markets. The FCA was in particular concerned by La Poste’s use of the confidentiality oath taken by mail workers in the context of their postal activities as a guarantee of the confidential treatment of office waste and La Poste’s reliance on interactions with customers in the context of its postal activities to promote its office paper waste collection services. To answer the FCA’s concerns, La Poste committed to prevent this confusion by means of implementing communication strategies and commercial proposals that clearly distinguish the two sets of services, especially by deleting all reference to the oath of mail workers in materials used to promote waste collection services and by avoiding promoting waste management services to customers that only inquire about universal postal services. La Poste also committed to implement awareness-raising campaigns with the staff in charge of the waste management services.

In Engie,52 the FCA found that Engie abused its dominant position by leveraging its position as the incumbent gas operator in order to obtain more contracts in the competitive gas and electricity markets. In particular, the FCA found that Engie used its historical customer database for regulated tariffs for gas to convert customers to market-based contracts for gas and electricity; used the business infrastructure and resources developed for its regulated tariff activity in order to offer new market-based contracts and win former customers back; and provided misleading sales arguments according to which Engie guaranteed a better security of gas supply than its competitors. The FCA considered that these practices were particularly harmful to competition as they were implemented at a time when the market was opening up to competition. Engie did not challenge the objections and settled the case.

In Archaeology,53 the FCA explained that whenever work planned by a developer is liable to destroy or irreparably damage a site that may contain archaeological remains, the state may stipulate that preventive archaeology excavations be carried out, and in such cases, the developer will contract with a service provider to perform a preliminary diagnostic survey before conducting excavations. In this context, the FCA found that INRAP, in its capacity as the monopolistic operator performing preliminary diagnostic surveys, had privileged access to a more detailed and more complete set of information than its excavation competitors, in particular as it had access to state survey orders and survey reports long before them. The FCA feared that the use by INRAP’s teams – whose missions both cover diagnostic survey operations and preventive excavation activities – could procure them an unfair competitive advantage by allowing them to better apprehend and anticipate potential opportunities on the preventive excavations market.

Finally, in Funeral services in the Ain department,54 the FCA found that the funeral company Comtet, which was at the time running the only crematorium in Viriat, a town in the east of France, by virtue of a public service delegation agreement, had abused its dominant position by generating confusion about, on the one hand, its public service cremation mission and, on the other, its funeral product and service supply activities for which it competes with other funeral directors. In particular, the FCA took the view that advertising materials used by Comtet to promote its commercial services while also referring to its role as the Viriat crematorium sole manager aimed at leading grieving families to believe that Comtet was the only provider in the Ain department able to organise funerals that include a cremation service. Interestingly, this is not the first time that the FCA has fined crematorium managers given a public service mission, or asked commitments from them to remedy a breach of their neutrality obligation.55

Margin squeeze

Margin squeeze is a strategy whereby the dominant vertically integrated firm applies excessive prices on upstream products or services that make downstream customers’ or rivals’ activities unprofitable. French courts consider that margin squeezes restrict competition only if a potentially as-efficient competitor would be unable to enter the downstream market without incurring losses. Such restriction of competition may be presumed only when the products or services supplied to its competitors by the dominant firm are indispensable to enable them to compete on the downstream market.56

In Eiffel Tower,57 the FCA found that TDF had implemented a margin-squeeze strategy in the market for the renewal of the national occupancy contract for audiovisual and radio broadcast from the Eiffel Tower site. Among other practices, the FCA found that the offers made by TDF to alternative operators for hosting services (which were indispensable to compete on the downstream market for the broadcasting of radio programmes from the Eiffel Tower) constituted a margin squeeze that did not allow alternative operators as efficient as TDF to submit competitive offers for the operation of the Eiffel Tower facilities. The FCA imposed a fine of €660,000 on TDF on these grounds.

Exclusivity clauses

Exclusive dealings entered into by a dominant firm do not constitute a per se abuse under French law, provided that the dominant firm’s behaviour does not result in additional foreclosure of its competitors. To assess whether exclusivity clauses may restrict competition, the FCA examines the clauses’ scope and duration, the existence of a technical justification and the economic consideration granted to the customer.58

In Mobile telephony equipment,59 the FCA was concerned about the duration (20 years) and the restrictive early termination terms of the agreements between mobile operators and TDF for the hosting of their antennae (in particular, early termination was possible only for very few sites each year). To address these concerns, TDF offered commitments designed to allow mobile operators to obtain better conditions for the hosting of their antennae and in cases where they were to switch to alternative operators. TDF committed in particular to limit the duration of new hosting agreements to 10 years, to cap the penalties generated by early termination and to increase the number of sites (or quota) for which early termination was possible.

In Sugar beet,60 Saint-Louis Sucre claimed that the long-term exclusive contracts concluded by Tereos, the number one sugar producer in the French market (and owner of the Beghin Say brand), with sugar beet growers prevented them from supplying alternative sugar producers in the Picardy region, which represents about 40 per cent of French sugar beet production. According to Saint-Louis Sucre, such practices could be qualified as illegal vertical restraints under Article L420-1 of the Commercial Code and as an abuse of Tereos’ dominance. In France, sugar beet growers typically join a cooperative of sugar producers, such as Tereos’ cooperative, and usually commit to produce a contractually agreed volume of beets that they will then sell to the cooperative. In this context, the FCA took the view that the terms offered by Tereos to its cooperative partners raised a number of competition concerns, especially in light of the opening up to competition of the French sugar procurement market following the abolition of the sugar production quotas in October 2017. The FCA found that:

  1. Tereos could potentially lock in all its cooperative partners until 2022 as it had introduced, starting from a 2017 to 2018 production campaign, a five-year exclusivity commitment for producers willing to increase their beet production by 20 per cent, in addition to the 10-year commitment initially undertaken by Tereos’ cooperative partners to cover usual beet tonnages;
  2. Tereos’ articles of association did not expressly indicate that cooperative partners could supply part of their beet production to other sugar groups such as Saint-Louis Sucre;
  3. Tereos had required cooperative partners that wished to leave the cooperative to give a 12-month notice period (instead of three months), making it even more difficult to switch to Tereos’ competitors.

In light of these concerns, Tereos offered a number of commitments that led the FCA to close its investigation.

Loyalty rebates

Under French law, loyalty rebates granted by a dominant firm may be considered abusive when a discount tends to remove or restrict a buyer’s freedom to choose its sources of supply absent a legitimate economic quid pro quo.61 The FCA considers forward-looking quantitative rebates (as opposed to rebates based on historical sales) conditional upon individual orders, volumes or turnover as generally valid, because they tend to reflect efficiency gains and economies of scale. Other forms of loyalty rebates may be considered abusive.

In DTT broadcasting,62 the FCA considered that TDF had abused its dominant position by granting loyalty rebates to channel editors that hired TDF for a substantial share of their broadcasting sites. The FCA found that TDF generally granted rebates only if channel editors assigned TDF at least 70 per cent of their sites, which prevented other competitors from developing their activity, even though they also offered rebates to channel editors.

Tying and bundling

Tying and bundling consist of tying or bundling two distinct products that typically belong to two different markets, either by forcing consumers to buy the tied products together or by providing them an incentive to buy the products together. The FCA considers that tying by a dominant firm may be abusive if the following two conditions are met: the tying and tied products are distinct products; and the tying practice is likely to lead to anticompetitive foreclosure.63

Since 2012, the FCA has issued two decisions in relation to tying in the golf insurance sector and in the electrical equipment maintenance sector.

In Golf insurance,64 the FCA expressed concerns with respect to the inclusion of insurance products – which are theoretically optional – in the licence delivered by the French Golf Federation. The FCA was particularly concerned that the French Golf Federation used its legal monopoly on the delivery of licences to foreclose its rivals from the golf insurance market through tied selling. To address these concerns, the French Golf Federation accepted to take commitments to prevent tying practices. In 2015, the FCA adopted another decision, finding that these commitments were no longer justified given developments in the market.65

In Schneider Electric, 66 the FCA was concerned that Schneider Electric had abused its dominant position by refusing to sell a significant number of spare parts necessary for the in-depth maintenance of its equipment to third-party maintenance providers, unless they also agreed to have Schneider Electric’s own employees perform the associated maintenance services. Schneider Electric argued before the FCA that this restriction aimed at ensuring the safety of property and people as well as at protecting its business model, in particular its brand image, know-how and the expertise of its technicians. However, the FCA found that Schneider Electric’s current policy was not necessary to achieve these objectives, as it was likely to constitute an unlawful tied sale by potentially preventing other maintenance providers from carrying out a full range of maintenance services on Schneider Electric’s high voltage and low voltage equipment, which respectively account for around 70 and 60 per cent of equipment sales in France. The FCA found that it was also likely to deprive customers of services that might be cheaper and of higher quality. Schneider Electric offered commitments to address the FCA’s concerns.

On the contrary, in Engie,67 the FCA found that Engie did not abuse its dominant position by proposing a bundled offer for electricity and regulated-tariff gas to its customers. The FCA considered that customers were free to subscribe to a separate agreement for regulated tariff gas without subscribing to an electricity supply agreement with Engie, and that no specific discount was granted if both products were contracted for jointly.

Similarly, in Ouibus,68 the FCA considered that the SNCF’s decision to offer students a ‘mobility package’ composed of an SNCF fidelity card allowing students to enjoy discounts on TGV journeys and €10 vouchers applicable to any SNCF trip, including Ouibus trips, was not likely to have an anticompetitive effect on Ouibus’s competitors in light of the low value of the vouchers and the fact that while students remain free to use them, very often they did not do so in practice.

Finally, in Google ads,69 1PlusV, a specialised search engine provider, claimed that Google had abused its dominant position by refusing to allow for the autonomous use of AdSense for Search, its advertising placement service. 1PlusV argued that Google had unlawfully tied AdSense services to that of its search engine tool, Custom Search Engine (CSE), despite 1PlusV’s wish to use AdSense with other search tools, including its own search product. The FCA, however, rejected the complaint, as it noted that Google had actually agreed to the standalone use of its ‘Ads-Only’ product provided that clients met some security requirements laid out by Google and that, since 2010, Google offered its Ads-Only product without any requirement to also buy its CSE product.

Refusal to deal

The concept of refusal to deal is regularly used by the FCA. It covers a broad range of practices, such as the refusal to grant access to an essential facility or network, the refusal to supply products to existing or new customers, and the refusal to license intellectual property rights. The FCA’s test is similar to the test adopted by the European Commission. Refusal to grant access to an essential facility is abusive if the following five conditions are met:

  1. the facility belongs to a dominant firm;
  2. access to the facility is necessary to compete on a related market;
  3. competitors cannot duplicate the facility at reasonable costs;
  4. the dominant firm unduly refuses access to the facility (or imposes unduly restrictive conditions); and
  5. access to the facility is possible.70

The same principles apply mutatis mutandis for refusal to supply a product or service. Concerning intellectual property rights, French courts consider that software may constitute an essential facility only if it is proved that the software is indispensable to operate on a market, and a competitor could not develop an alternative software under economically reasonable conditions (even if such economic conditions were less favourable than those under which the dominant undertaking operates).71 In practice, the following facilities have been considered essential under French law: transport facilities, the electricity network, the telephone network, and certain databases or software.

In SNCF,72 the FCA and the Paris Court of Appeal considered that SNCF abused its dominant position by:

  • delaying the release of information concerning access to freight yards, thereby preventing its competitors from accessing rail capacities essential to their business activity;
  • retaining exclusive use of certain railway cars that are used for large tonnage transportation and constitute an essential part of the infrastructure; and
  • pursuing a train path overbooking policy that prevented its rivals from participating in certain calls for tenders or honouring certain contracts.

In Cegedim,73 the FCA fined Cegedim, a company active both in the provision of healthcare databases and customer relation management (CRM) software for refusing access to its database of medical information to pharmaceutical laboratories that used the CRM software of one of its competitors, Euris. The FCA considered that Cegedim’s database was not an essential facility because there were alternative, albeit inferior, rival databases. However, such a refusal to deal nevertheless amounted to an abuse of a dominant position, since Cegedim was found to discriminate against customers using a competing CRM software, thus preventing the competing CRM software provider from gaining market shares (the FCA pointed out that the practice had caused the competitor to lose 70 per cent of its customers between 2008 and 2012). In 2015, the Paris Court of Appeal upheld the FCA’s decision and considered in particular that the practices implemented by Cegedim had unjustifiably disadvantaged Euris in terms of costs and reputation.74

In TF1 Publicité,75 Canal+ claimed that TF1 Publicité abusively refused to sell advertising spaces available on its TF1 channel to the D8 channel, therefore preventing the Canal+ group from making sure that as many television viewers as possible were aware of the launch of the D8 channel. The FCA considered, however, that this refusal was not abusive because the Canal+ group had access to other alternative means to promote its channel, in particular as it could have bought advertising spaces from the M6 channel, one of TF1’s competitors; and the Canal+ group did, at the time, rely on other media sources to promote its channel, which helped D8 to progressively achieve very good audience ratings and generate strong advert revenues. The FCA therefore concluded that TF1 Publicité’s refusal did not deprive Canal+ from an essential service necessary to carry out its activity and actually aimed at protecting its own interests.

Disparagement

Under French law, disparagement consists of publicly discrediting an identified competitor or its identified products or services. The FCA considers that disparagement is distinct from criticism as it originates from an economic player seeking to benefit from an unjustified competitive advantage by discrediting its competitor or products, and may constitute an abuse of dominance (when disparagement originates from a dominant player).

In Sanofi76 and Schering-Plough,77 the FCA fined two pharmaceutical companies for disparagement that consisted of widely publicising differences between their originator drug (or the generic manufactured by the producer of the originator drug) and generic drugs at the time of the entry of the generic drugs into the market. Irrespective of whether such differences were verified or not, the companies could not prove that they had therapeutic consequences. Although neither Sanofi nor Schering-Plough had explicitly presented generic drugs as being inferior, but only pointed at factual differences, the very fact of shedding doubts without scientific supporting evidence was found to be abusive by the FCA. Sanofi was fined €40.6 million and Schering-Plough was fined €15.3 million.

In 2017, the FCA adopted a third infringement decision against a pharmaceutical laboratory for disparagement of generics. In Janssen-Cilag,78 despite the withdrawal of Ratiopharm’s complaint, the FCA imposed a fine of €25 million on Janssen-Cilag for having first prevented and then restricted the development of the generic versions of its Durogesic drug in France, following the expiration of the patent protection for fentanyl. In particular, the FCA found that Janssen-Cilag submitted legally unfounded arguments to the AFSSAPS aimed at casting doubts on the innocuousness and effectiveness of the generic drug. This led the French authority to temporarily refuse to recognise the generic status of Ratiopharm’s fentanyl drug despite not having the power to do so, as the European Commission had already recognised the generic status of Ratiopharm’s drug at the European level, and had directed concerned Member States to grant the national market authorisation within 30 days. The AFSSAPS ultimately granted generic status to Ratiopharm’s drug after a delay of more than a year, but added a warning to this authorisation, recommending careful medical supervision of some patients switching from one fentanyl drug to another. In addition, the FCA found that once the authorisation had been granted, Janssen-Cilag started a massive disparagement campaign of the generic drugs among health professionals, using different media and channels, with the aim of discrediting the generic drugs’ reputation by highlighting quantitative, qualitative and size differences from the Durogesic patch. The FCA also considered that Janssen-Cilag distorted the content of the warning issued by the AFSSAPS by providing an inaccurate and incomplete presentation of the risks associated with substitution. The FCA concluded that Janssen-Cilag’s practices constituted a single and continuous infringement that had significant foreclosure effects on competitors by delaying the arrival of generics, and then contributing to their low penetration rate, on a market already characterised by the reluctance of healthcare professionals to prescribe generics.

Most-favoured-nation clauses

In Booking.com,79 the FCA accepted commitments addressing its preliminary concerns that the most-favoured-nation (MFN) clauses imposed by Booking.com could have exclusionary effects. The decision was also based on the concern that the MFN clauses could constitute a restrictive practice. MFN clauses prevented hotels from offering to rival reservation platforms or other distribution channels (including through their own sales channels) lower prices or better commercial conditions (i.e., availability, services) than to Booking.com. In particular, the FCA considered that these clauses could prevent smaller platforms and new entrants from gaining market shares by offering lower prices or better services to customers, including by offering lower commission rates to hotels.

Other exclusionary tactics

The FCA may intervene under Article L420-2 of the Commercial Code where a dominant company’s allegedly abusive conduct is likely to lead to anticompetitive foreclosure.

In Overseas DDT,80 the FCA imposed a fine of €4.2 million on TDF, considering that TDF had abused its dominant position by failing to provide the technical and pricing information concerning access to its broadcasting infrastructures to competitors. In the context of a call for tender issued by France Télévisions in the overseas territories, access to such information was necessary for the bidders (that also included TDF) to prepare their offers. Separately, the FCA also found that TDF implemented a similar strategy in connection with the Eiffel Tower site.81

In Petanque balls,82 the FCA imposed a fine of €320,000 on Obut for imposing resale prices on some of its distributors. The FCA considered that Obut was in a dominant position in the market for the production of petanque balls for competitions and abused its dominant position in the market for the distribution of petanque balls, in which Obut was also active, by imposing resale prices so as to reduce price competition with other retailers. In addition, Obut’s sales forces monitored compliance with the suggested list prices, and threatened distributors with delayed deliveries, blocked orders and delisting in cases of deviation. In its decision, the FCA noted that such practices are also prohibited under Article L420-1 of the Commercial Code. The FCA decided to rely on Article L420-2 of the French commercial code exclusively, though.

iii Exploitative abuses

Exploitative abuses consist of a dominant firm imposing ‘unbalanced’ conditions on its trading partners, and in particular imposing excessively high prices. Under specific circumstances, the FCA considers that dominant firms are deprived of the right to adopt a course of action or take measures that are not themselves abuses, and that would even be unobjectionable if adopted by non-dominant undertakings. In 2016, the FCA did not issue a single sanctioning decision concerning exploitative abuses. In 2009, however, the FCA had fined Orange in the Telecommunication in overseas départements case.83

In this case, the FCA investigated the rates applied by Orange for connection services between the island of La Réunion and the mainland, and found that ‘there existed a clear disproportion between these rates and the value of the services’, which resulted in the imposition of excessive pricing on consumers (residential and professional), and hindered the development of the high-speed market on the island of La Réunion, and the development of Orange’s competitors.

iv Discrimination

Abusive discrimination basically consists of the application by a dominant company of dissimilar conditions to trading partners in equivalent transactions, thereby placing certain trading partners at a competitive disadvantage.84 The FCA considers that discriminatory practices may restrict competition when such practices have as their object or effect exclusion of a competitor from the market (first-line discrimination); or the dominant firm discriminates between its customers, thereby producing an adverse effect on a market in which the dominant firm is not active (secondary-line discrimination). While first-line discrimination is an exclusionary abuse, second-line discrimination is in the exploitative abuse category.

In Electronic communications,85 the FCA found that Orange gave access to more comprehensive information regarding the operation of the copper local loop to its own commercial entities than to third-party operators. The FCA considered that the (first-line) discrimination in the access to information had artificially strengthened Orange’s dominant position, and affected third-party operators by making them appear less reactive and less informed than Orange.

In NavX, the FCA took a strict approach towards secondary-line discrimination, suggesting that dominant firms have an obligation to treat all of their customers equally, even when the dominant undertaking is not active in the downstream market.86 In particular, the FCA found that the rules defined by Google for the operation of its AdWords advertising platform should be applied to all advertisers in an ‘objective, transparent and non-discriminatory manner’, and that discriminatory treatments could be considered abusive. The FCA ultimately accepted commitments from Google to clarify certain rules applicable to advertisers, in particular in respect of the conditions of suspension of their AdWords account. In 2015, the FCA also received a complaint and a request for interim measures against Google, essentially on the same grounds as NavX. According to the complainant, Gibmedia, Google suspended Gibmedia’s AdWords account in a manner that was not objective, transparent and non-discriminatory. The FCA refused to grant interim measures in the absence of proof of serious or immediate harm to consumers, the sector or the complainant, but decided to continue the investigation on the merits.87

In 2017, in Funeral services in the Ain department,88 the FCA also found that Comtet, as the only manager of the Viriat crematorium, had abused its dominant position by discriminating competitive funeral directors and their clients for the provision of cremation services for which it was responsible by virtue of the public service delegation agreement concluded with the city of Viriat. The FCA found that this discrimination took the form of a price differentiation through the imposition of a price premium of 20 per cent to competing funeral directors that was not applicable to Comtet’s own customers. In addition, the FCA noted that competing funeral directors were not able to explain this pricing difference to their customers as Comtet did not clearly identify in the forms it provided to its competitors’ clients the funeral services that were covered by the public cremation tariff agreed with the city of Viriat and optional funeral services that the price premium was supposed to cover. The FCA found that this discrimination was not justified by any service improvement or differences in the grieving families’ circumstances and therefore fined Comtet for abusive price discrimination.

V Remedies and Sanctions

Article L464-2 of the Commercial Code provides that the FCA can impose fines on infringing undertakings of up to 10 per cent of the firms’ worldwide turnover. The FCA can also order undertakings to terminate anticompetitive practices within a specified time limit, impose remedies, or both. As an alternative to sanctions, the FCA may accept commitments offered by the dominant firms being investigated in response to the FCA’s competition concerns. In the event that an undertaking does not comply with the FCA’s decision to terminate anticompetitive practices or with the FCA’s orders, or does not implement their commitments, the FCA may impose penalty payments of up to 5 per cent of the undertaking’s average daily turnover.

i Sanctions

According to Article L464-2 of the Commercial Code, fines should be proportionate to:

  1. the gravity of the infringement;
  2. the importance of the damage to the economy;
  3. the group or company’s individual situation; and
  4. recidivism.

In any event, fines cannot exceed 10 per cent of the highest consolidated worldwide turnover achieved since the fiscal year preceding the starting date of the anticompetitive practices.

In 2011, the FCA issued guidelines on the methods for determining fines.89 The basic amount of the fine is calculated as a proportion of the value of sales related to the infringement, taking into consideration the gravity of the infringement and the damage to the economy. The proportion of the value of sales is between zero and 30 per cent. The basic amount of the fine is then adjusted taking into account the duration of the infringement, and the existence of aggravating circumstances (e.g., if the undertaking has a specific ability to influence) or mitigating circumstances (e.g., if the infringement was authorised or encouraged by public authorities). Other factors that might also be taken into account are the size and the economic power of the undertaking or its group, the fact that the undertaking is a single product company and recidivism.

With respect to recidivism, the French Supreme Court recently ruled in the SNCF case that recidivism can be established even though the two infringements were implemented on two different markets.90

Since the issuance of the FCA’s fining guidelines, 21 abuse of dominance fining decisions have been issued:

  1. Saint-Pierre-et-Miquelon;
  2. Mobile Telephony;
  3. Rail Freight;
  4. Ordre National des Experts Comptables;
  5. Sanofi;
  6. Schering-Plough;
  7. EDF;
  8. Amaury;
  9. Mobile telephony at La Réunion and Mayotte (two cases);
  10. Cegedim;
  11. Antilles dairy products;
  12. Overseas DDT deployment;
  13. Eiffel Tower;
  14. Electronic communications;
  15. DTT broadcasting;
  16. Zinc;
  17. Pétanque balls;
  18. Engie;
  19. Funeral services in the Ain department; and
  20. Janssen-Cilag.91

In 2015, the FCA imposed a record-breaking fine of €350 million on Orange in the Electronic communications case (after settlement).92

ii Behavioural remedies

The FCA can impose behavioural remedies either as an interim measure or as a sanction imposed in decisions on the merits.

Pursuant to Article L464-1 of the Commercial Code, the FCA may grant interim measures and order behavioural remedies in the event that the reported practices cause serious and immediate damage to the general economy, the economy of a sector or the interests of either consumers or the complainant. Since 2010, interim measures have been granted in five abuse of dominance cases.93 In 2016, the FCA granted interim measures in only one case.94

Pursuant to Article L464-2 of the Commercial Code, the FCA may also order undertakings to terminate anticompetitive practices within a specific time frame or impose behavioural remedies in addition to fines in its decision on the merits.

In Electronic communications,95 the FCA ordered Orange to provide competitors with equal access to the information it collects as the operator of the local loop, and to put an end to the loyalty and exclusivity policy subject to the investigation.

In Cegedim,96 the FCA ordered Cegedim to stop any form of discrimination among its customers based on the CRM software they were using (i.e., Cegedim’s or competitors’ CRM software). Similarly, in Funeral services in the Ain department,97 the FCA ordered Comtet to modify its pricing forms so as to clearly show the services that are already covered by the public tariff and that cannot be subject to an additional fee.

iii Structural remedies

Pursuant to Article L430-9 of the Commercial Code, the FCA can order an undertaking or a group of undertakings that abused either their dominant position or the state of economic dependence of a commercial partner to alter or terminate a transaction that gave rise to the underlying dominant position, even in cases where the transaction had been authorised by the FCA in the context of a merger review. This provision enables the FCA to undo a transaction or an agreement for abuse of dominance. The FCA has used this power on only one occasion. In the Water market case,98 the FCA found that the Compagnie Générale des Eaux and the Lyonnaise des Eaux, which had created several joint ventures, were abusing their collective dominance by deciding not to compete against their joint ventures for certain calls for tenders. The FCA found that the termination of the joint ventures was necessary to remedy the behaviour and, ultimately, the Compagnie Générale des Eaux and the Lyonnaise des Eaux voluntarily decided to terminate their joint venture agreements.

The FCA is also empowered to order structural remedies in case of abuse of dominance or of economic dependence in the retail sector (see Article L752-26 of the Commercial Code).

iv Commitments

As an alternative to sanctions and remedies, the FCA may also accept commitments offered by undertakings pursuant to Article L464-2 of the Commercial Code. The FCA can make such commitments binding in exchange for the closing of an investigation on the merits without making a finding of any infringement, provided the commitments are offered before the FCA issues a statement of objections. The FCA uses the commitments procedure in order to intervene more quickly and avoid the administrative costs and legal constraints of establishing an abuse of dominance. The FCA issued five commitment decisions in 2017.

In Gas market,99 Engie not only offered commitments in relation to its pricing practices but also in relation to several clauses included in individual metering and gas service contracts concluded with co-ownership associations that raised competitive concerns. The FCA’s concerns focused on the excessive length of the contracts (10 years), the prohibitive cancellation fees customers were charged in the case of early termination and clauses prohibiting customers from using alternative energies for heating purposes. To answer the FCA’s concerns, Engie agreed to inform its customers of the possibility to terminate their contracts at no cost following a five-year commitment period, and not to prevent common hold associations from using alternative energy sources for heating.

In Archaeology,100 in response to the competition concerns raised by the FCA, INRAP offered a set of commitments. Following the market test and in light of the difficulties for INRAP to address all aspects of the identified competition law issues by itself, the state has committed to set up, by March 2018, a secure data hosting platform to enable all excavation service providers to access the preliminary information available to diagnostic survey operators within a comparable time frame. In addition, INRAP has committed to implementing an analytical accounting system guaranteeing the effective and reliable accounting and financial separation of its for-profit and non-profit activities to eliminate any risk of cross-subsidies.

In Sugar beet,101 Tereos offered to clearly limit each cooperative partner’s supply obligation to the contractual volumes agreed with Tereos, thus putting an end to their exclusive supply obligation and enabling them to sell their production to other sugar producers. Tereos also committed to eliminate the dual commitment period, reduce the notice period in the case of termination from 12 to three months, and ensure that Tereos’ sector managers receive training in competition law. The FCA considered that a five-year commitment period from Tereos would be sufficient to address the competitive concerns raised by the FCA, since Tereos’ partners were currently committed to Tereos for a similar or even shorter period of time.

In Schneider Electric,102 the FCA accepted commitments taking the form of mandatory training requirements. Schneider Electric indeed agreed to allow third-party maintenance providers to sell certain spare parts that were previously only available to its own technicians, on the condition that third party-providers completed training modules and appropriate tests similar to the ones followed by Schneider Electric’s employees in order to be able to handle any incident and associated risks with the provision of maintenance services. All third-party maintenance providers are now able to receive such trainings, provided that they hold certain educational qualifications and have sufficient skills and experience; and the company that employs them holds the required levels of certification and qualification, and complies with a number of obligations. In particular, the company must ensure that its trained employees carry out a minimum number of maintenance operations – one operation every six months per training module – and must send proof of these interventions through a dedicated portal. Schneider Electric’s commitments, along with monitoring obligations, will be undertaken for five years.

Finally, in Office waste,103 the FCA noted that the market investigation conducted under the merger control review of the La Poste–Suez joint venture raised the same predatory and leveraging concerns as the ones identified in the abuse of dominance case in light of La Poste’s position on the postal service markets, leading La Poste to take the same commitments in both cases.

VI Procedure

The French Minister of the Economy, certain other public entities and any company may refer practices falling within the scope of Article L420-2 of the Commercial Code to the FCA. The FCA may also initiate investigations ex officio into alleged abuses of a dominant position. The FCA cannot investigate facts that took place more than five years ago unless a procedural act interrupts this statute of limitations (see Article L462-7 of the Commercial Code). If the FCA considers that a complaint is unsubstantiated, it can issue a reasoned decision rejecting the complaint at a preliminary stage.

i Interim measures

Claimants may request interim relief. A request for interim relief must be filed concurrently with the action on the merits and lasts approximately six months. The FCA will order interim measures if the following cumulative criteria are met: the FCA has jurisdiction over the relevant practices on the merits; there is a reasonably strong prima facie case establishing that the alleged practices breach competition rules; and the alleged practices may have serious and immediate effects on consumers, the sector or the interests of the plaintiff. In practice, interim measures are ordered mainly in situations where the defendant’s actions threaten to foreclose a competitor from a market. The interim measure investigation is followed by a hearing and a decision whereby the FCA decides whether interim measures are justified and whether an investigation on the merits is required. The FCA generally issues a decision within one or two months of the hearing.

In 2017, the FCA did not grant any interim measure decision, while in 2016, the FCA ordered interim measures against Engie in the gas market to ensure that the price of some of its offers to business customers reflected its costs.104 The FCA considered that Engie’s practices could have serious and immediate anticompetitive effects on the sector and justified interim measures pending a decision on the merits.

In 2015, in Gibmedia, the FCA dismissed a request for interim measures against Google. According to the complainant, Gibmedia, Google suspended its AdWords account without prior notice and based on non-transparent and discriminatory grounds. Gibmedia thus requested that its account be reinstated as an interim measure pending the investigation on the merits. The FCA, however, refused to grant any interim measure, as it found that the legal standard for such an urgent procedure was not met. In particular, the FCA found that no serious or immediate harm to consumers, the sector or the complainant could be established.105 Similarly, the FCA dismissed a request for interim measures by retailer Concurrence against Samsung.106 Concurrence claimed that Samsung had implemented a number of anticompetitive practices, and requested interim measures to force Samsung to supply the Elite product range and accept that its products be sold through marketplace websites. The FCA found that Concurrence did not prove that the alleged practices caused it serious and immediate harm, notably because Concurrence’s financial difficulties dated back to 2008 (i.e., several years before the alleged anticompetitive practices took place) and Concurrence waited two-and-a-half years before requesting interim measures.

ii Investigation on the merits

If the FCA considers that a complaint is well grounded, it appoints case handlers to investigate the case. The case handlers have wide investigative powers and may conduct dawn raids if they are authorised to do so by a court, or request information from undertakings. The investigation period typically lasts from six months to three years (or sometimes more), until the FCA notifies the companies involved of its objections. The investigation procedure is partly adversarial (i.e., each interested party is given an opportunity to present its case during the investigation period). The exchange of written submissions, including two written reports issued by the case handlers, generally lasts one to two years, until a hearing is scheduled.

iii Hearing

The parties are invited to a hearing before the FCA Board, where the case handlers provide an oral presentation of their observations. The parties may also present their observations orally.

iv Decision

The FCA generally issues a decision within three months of the hearing. It may find that the alleged practices are not established, or impose a fine on the undertakings and order remedies. The parties may appeal the decision before the Paris Court of Appeals within a month. Paris Court of Appeal rulings may in turn be challenged before the French Supreme Court, which only has jurisdiction over matters of law.

v Commitments

If the FCA intends to implement the commitment procedure as an alternative to an infringement procedure, the case handlers inform the undertakings of the FCA’s preliminary competition concerns at an early stage during the investigation (before a statement of objections has been issued) and invite them to offer commitments that adequately address the identified concerns.107 Once the proposed commitments have been received, the case handlers carry out a market test, which is published on the FCA’s website, to ensure that the proposed commitments are considered adequate by the main stakeholders. The FCA may either accept or reject the commitments. The FCA may also require amendments. If the FCA finally considers that the commitments offered address its competition concerns, it makes the commitments binding in its final decision.

vi Settlement

The settlement procedure was recently modified by Law No. 2015-990 of 6 August 2015. Under the new regime, companies that are willing to settle and commit to not challenging the objections notified by the FCA in exchange can negotiate a fine range with the Investigation Service. Companies may also offer compliance and behavioural commitments. The FCA board takes the ultimate decision but will comply with the fine range negotiated with the Investigation Service.

In Electronic communications,108 although the new regime was not applicable yet, the FCA Investigation Service anticipated the reform of the settlement procedure and negotiated with Orange a €350 million cap on the fine in exchange for Orange’s commitment not to challenge the objections and to implement behavioural remedies. The FCA Board eventually imposed the maximum fine on Orange.

The FCA has adopted two settlement decisions in abuse of dominance cases since the entry into force of the new settlement regime. In Petanque balls, the FCA settled a fine of €320,000 with Obut as well as a commitment to implement an antitrust compliance programme.109 In Engie,110 Engie did not challenge the FCA’s objections, and the FCA imposed a €100 million fine following a settlement procedure.

VII Private Enforcement

Private enforcement claims may be brought under general tort law provisions (Article 1240 of the Civil Code) generally within five years of the day the victim becomes aware or should have become aware of the wrongdoing.

Private enforcement claims require the defendant to prove a fault, a damage and a causal link between the two. Since the implementation into French law of the EU Damages Actions Directive,111 an FCA decision to sanction for anticompetitive practices creates an unrebuttable presumption of the existence of such anticompetitive practices before civil and commercial courts, provided that all appeals against the FCA’s decision are exhausted. Establishing a fault is significantly more difficult in stand-alone actions. Proving the existence and the amount of the damage is also difficult in dominance cases, which explains why claimants often have to rely on expert economic and accounting reports. The principle of full compensation for the damage suffered applies (both material and non-material damage, but there are no punitive damages).

Antitrust class actions have been available in France since 2014 under the following conditions:

  1. the claim is a follow-on action after a sanction decision by the FCA or the European Commission;
  2. the action is brought within five years of the final sanction decision (no longer subject to an appeal);
  3. the claim is brought by a consumer association on behalf of consumers; and
  4. consumers have opted in to join the class action.

Private enforcement has been limited in France, as there has not been any antitrust class action so far; the majority of cases are settled out of court; and there is no easy access to evidence for claimants who bear the burden of proof (although the implementation of the EU Damages Actions Directive under French law will be helpful for claimants). Furthermore, although specific district courts and commercial courts have exclusive jurisdiction over antitrust claims, the judges are not specialised in antitrust matters, and often do not have sufficient independent means to assess the existence of dominance and the effects of the alleged abuses on the markets. Private claimants in France, therefore, essentially rely on decisions issued by the FCA.

For instance, in Outremer Telecom v. Orange,112 Outremer Telecom brought an action before the Paris Commercial Court based on a 2009 FCA decision.113 Outremer Telecom alleged that Orange’s abuses of its dominant position (and anticompetitive agreements) on the mobile telephone market in the Antilles and Guyana (French overseas territories) prevented it from expanding on this market. The Paris Commercial Court awarded Outremer Telecom €7.9 million to compensate for the damage resulting from Orange’s abusive loyalty rebates and excessive prices policy on off-net calls. However, the Paris Court of Appeals recently cut the damages granted to Outremer Telecom to €2.6 million after reviewing the calculation of the damage estimate.114 In December 2017, in Digicel v. Orange,115 the Paris Commercial Court ruled on a separate follow-on damages action against Orange in relation to the same FCA decision. The Paris Commercial Court found that Digicel was harmed by Orange’s abusive loyalty rebates and discounts applied on calls from fixed phones to Orange mobiles in the Caribbean overseas territories. In the ruling, the Court acknowledged that Orange’s practices had significant restrictive effects on Digicel’s development since its entry into the Caribbean market in 2000 and therefore awarded Digicel €180 million based on an expert calculation of lost revenues, plus 10.4 per cent interest per year starting from 2009, leading to a total of €346 million in damages to be paid by Orange and its affiliate, Orange Caraïbe. The judge, however, rejected Digicel’s claims in relation to Orange’s other infringements, having found that Orange’s exclusivity clauses with distributors and repairers did not have any impact on Digicel’s development, as the latter had deliberately chosen a single-brand distribution network and had decided to undertake the reparations in mainland France.

Purely stand-alone actions (not based on a previous FCA decision) are rare. Nevertheless, in Bottin Cartographes v. Google,116 the Paris Commercial Court granted Bottin Cartographes €500,000 in damages in the first instance, based on a stand-alone claim alleging that Google implemented predatory prices by offering its Google Maps API (application programming interface) service, which enables third-party website operators to display a map on their website, free of charge. On appeal, however, the Paris Court of Appeal overruled the first instance decision and dismissed all the plaintiff’s claims.117 The Court of Appeal decided to support its decision by asking the FCA for its opinion on the existence of a dominant position and the question of predation.118 The FCA found that irrespective of Google’s market position, Google’s behaviour with regards to Google Maps API could not be deemed predatory because the economic analysis submitted to the FCA showed that Google always covered at least its average incremental costs, and in any event, there was no evidence of a predatory strategy, especially as there were a significant number of competitors in the market, many of them offering their products for free or on a ‘freemium’ basis, like Google. On the basis of the FCA’s opinion, the Court of Appeal found that Google’s behaviour could not be deemed abusive and dismissed all claims.

In 2016, in Aviscom v. La Montagne,119 the Paris Court of Appeals confirmed a decision of the Paris Commercial Court,120 which found that a local journal had abused its dominant position by tying funeral notices in the journal with the services of an online condolence website (in particular, La Montagne inserted a link towards the online condolence website, and refused to insert a link towards the competing website owned by Aviscom). The Court found that this resulted in excluding Aviscom from the local market for online funeral notices. However, the Court reduced the amount of damages against the local journal from €50,000 to €5,000 to the extent that the anticompetitive practices had stopped since January 2014 and that the harm to the claimant resulted only in a loss of the chance of obtaining additional market shares on the local market for online funeral notices.

In SFR v. Orange,121 the Paris Commercial Court granted €51.4 million of damages against Orange following a stand-alone claim made by SFR. SFR claimed that Orange had implemented a margin-squeeze strategy by allowing secondary residence owners to suspend their landlines while they were away from their secondary residence.122 On this upstream market, Orange, however, refused to offer suspendable telephone access to telecom operators. The Commercial Court found that this practice constituted a margin squeeze because as a result, SFR was not in a position to propose to its downstream customers to have suspendable landline access. On appeal, however, the Paris Court of Appeals annulled the Paris Commercial Court’s judgment. The Court of Appeals found that the market for secondary residences was not a relevant product market because from the demand-side perspective, 90 per cent of secondary residence owners considered that the suspendable line was substitutable with other telephone lines; and from the supply-side, the data used by SFR to demonstrate the cost difference as compared with other telephone lines was not sufficiently reliable.123 In 2016, the French Supreme Court overturned the Court of Appeals’ ruling.124 On the demand-side substitutability, the Supreme Court found that the Court of Appeals should have conducted a more detailed analysis, notably by making a distinction between secondary residence owners that purchased a simple fixed line and those that purchased multi-service fixed lines and mobile lines. On the supply-side substitutability, the Supreme Court found that the Court of Appeals should have ignored the unreliability of the data and should have discussed the relevance of the criteria used by SFR. The Supreme Court referred the case back to the appellate court.

In Petanque Longue v. Obut,125 the Paris Court of Appeals granted interim measures following a stand-alone complaint by Petanque Longue against Obut. Petanque Lonque is a reseller and engraver of petanque balls, and Obut is the main French manufacturer of petanque balls (and also provides petanque ball engraving services). Petanque Longue claimed that Obut had started to implement a new loyalty rebate system that discriminated against petanque ball engravers. French courts may grant interim measures when the practice constitutes a manifestly unlawful disturbance or there is a risk of imminent harm caused by such practice. The Court found that the manufacturer’s new loyalty rebates were discriminatory because the distinction between different categories of resellers was not made on the basis of objective criteria (e.g., turnover thresholds or the nature of services offered by resellers). The Court also found that the manufacturer’s underlying goal was to undermine Petanque Longue’s position as a petanque ball engraver, which therefore constituted a manifestly unlawful disturbance. Obut’s practices led to a 40 per cent drop in Pentanque Longue’s profit margin, which was sufficient to establish a risk of imminent harm. Consequently, the Court ordered Obut to stop implementing its new loyalty rebate policy until the FCA issues a substantive decision.

Finally, in Betclic v. PMU,126 the Paris Court of First Instance ruled that a commitment decision that led the FCA to close the investigation on the merits without making a finding of infringement does not prevent ordinary courts from finding that the company having taken these commitments has engaged in abusive conduct, and noted that courts are free to rely on information contained in the commitment decision and use it as an indication or even prima facie evidence of the anticompetitive nature of the practices. The Court clearly stated that a company cannot hide behind a commitment procedure to avoid compensating victims for the damage they suffered. Having said that, the Court of First Instance relied on the FCA’s PMU commitment decision127 to find that PMU held a dominant position on the offline and online horse racing betting markets. The Court also relied on feedback during the market test when the PMU offered commitments in 2014 to find that the PMU had indeed abused its dominant position by pooling together its online and offline bets to gain an unfair competitive advantage offer. The Court ultimately decided to stay the proceedings, and ordered an expert to evaluate what could have been Betclic’s market share had the PMU not pooled together its online and offline bets to determine the amount of damages to award to Betclic.

VIII Future Developments

Private enforcement is expected to continue developing as the EU Damages Actions Directive is now implemented under French law.128

At the FCA, the healthcare sector was under the spotlight in 2017, with Janssen-Cilag being fined for abuse of dominance and also the launch in November 2017 of a new sector inquiry into the functioning of competition in the drug and medical biology sectors.129 The FCA has already issued several opinions in relation to the pharmaceutical distribution chain, the online sale of pharmaceuticals and the sale of hearing aids, but found that some of its recommendations had only partially been implemented, and it therefore deemed it necessary to issue another opinion to update and, if necessary, change its proposals in light of new market developments.

In addition, in a statement of 19 October 2017,130 the FCA explained that although it still values the introduction of compliance programmes by companies wishing to raise their employees’ awareness of applicable competition rules, it now considers that such programmes are part of the day-to-day management of businesses and has therefore indicated that it will not in the future generally consider that commitments aimed at implementing compliance programmes will justify a reduction of a fine that the FCA plans to impose. In the same statement, the FCA also indicated that it intends to publish a notice on the implementation of the new settlement procedure, and in this regard published draft guidelines on its website in March 2018. Although nothing is said in the draft guidelines about whether settlement fines will be lower than under the previous regime, the main rationale behind this project is to provide stronger incentives for companies to cooperate with the FCA. The draft guidelines indicate that companies must request the benefit of this procedure within two months of being notified of objections raised by the FCA, and must unconditionally acknowledge all the objections raised in the statement of objections. The draft also shows that the FCA will be reluctant to engage in hybrid settlements, whereby some companies choose to settle while others decide to defend their case. The public consultation on the draft guidelines to gather comments from concerned parties ended on 30 April 2018.

1 Antoine Winckler is a partner and Frédéric de Bure is counsel at Cleary Gottlieb Steen & Hamilton LLP. The authors gratefully acknowledge the brilliant contribution of Sarah Aït Benali of the Paris office of Cleary Gottlieb Steen & Hamilton LLP.

2 Guidance on the Commission’s enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings, OJ C45 of 24 February 2009, page 7.

3 FCA decisions No. 17-D-02 of 10 February 2017 concerning practices implemented in the competitive petanque balls sector, which imposed a €320.000 fine on Obut; No. 17-D-06 of 21 March 2017 concerning practices implemented in the gas and electricity supply sector, which imposed a €100 million fine on Engie; No. 17-D-13 of 27 July 2017 of 27 July 2017 concerning practices implemented in the funeral sector in the Ain department, which imposed a €80.000 fine on Comtet; and No. 17-D-25 of 20 December 2017 concerning practices implemented in the Fentanyl transdermal patches sector, which imposed a €25 million fine on Janssen-Cilag and its parent company, Johnson & Johnson.

4 FCA decisions No. 17-D-02 of 10 February 2017 and No. 17-D-06 of 21 March 2017, mentioned above.

5 FCA decisions No. 17-D-05 of 10 March 2017 concerning practices implemented by the SACD; No. 17-D-08 of 1 June 2017 concerning practices in the passenger transport sector; No. 17-D-15 of 9 August 2017 concerning practices implemented by Reed Expositions France in the organisation of trade fairs and exhibition sector; No. 17-D-17 of 27 September 2017 concerning practices implemented by the Française des Jeux in the scratch cards sector; No. 17-D-23 of 11 December 2017 concerning practices implemented in the press distribution sector; and No. 17-D-24 of 18 December 2017 concerning practices implemented in the online search engine and online advertising intermediation sector.

6 FCA decisions No. 17-D-07 of 15 May 2017 concerning practices in the moving of private individuals and transfer of companies sector; No. 17-D-11 of 25 July 2017 concerning practices in the TV advertising sector; and No. 17-D-19 of 6 October 2017 concerning practices in the non-legal auction sales sector.

7 FCA decisions No. 17-D-17 and 17-D-23, mentioned above.

8 FCA decisions No. 17-D-09 of 1 June 2017 concerning practices implemented by the National Institute of Preventive Archaeological Surveys in the preventive archaeology sector; No. 17-D-12 of 26 July 2017 concerning practices implemented in the sugar beet procurement sector; No. 17-D-16 of 7 September 2017 concerning practices implemented by Engie in the energy sector; No. 17-D-21 of 9 November 2017 concerning practices implemented in the medium and low-voltage electrical distribution equipment maintenance sector; and No. 17-D-26 of 21 December 2017 concerning practices implemented in the collection and recycling of non-hazardous office waste.

9 FCA decision No. 17-D-13, mentioned above.

10 FCA decision No. 17-D-06, mentioned above.

11 FCA decision No. 17-D-16, mentioned above.

12 FCA decision No. 17-D-25, mentioned above.

13 FCA decision No. 17-D-02, mentioned above.

14 FCA decision No. 17-D-26, mentioned above.

15 FCA decision No. 17-D-27 of 21 December 2017 concerning obstruction practices implemented by Brenntag.

16 FCA decision No. 17-D-25, mentioned above.

17 FCA decision No. 14-D-09 of 4 September 2014 concerning practices in the espresso coffee machines sector.

18 FCA decision No. 17-D-21, mentioned above.

19 FCA decision No. 12-D-24 of 13 December 2012 concerning practices in the mobile telephony sector.

20 Paris Court of Appeals, 19 May 2016, Mobile telephony.

21 FCA decision No. 17-D-17, mentioned above.

22 FCA decision No. 17-D-12, mentioned above.

23 FCA Annual Report for 2011, page 118.

24 FCA decision No. 17-D-13, mentioned above.

25 FCA decision No. 04-D-48 of 14 October 2004 concerning practices implemented by France Telecom, SFR Cegetel and Bouygues Telecom.

26 FCA decision No. 05-D-32 of 22 June 2005 concerning practices in the pet food sector.

27 FCA decision No. 17-D-09, mentioned above.

28 FCA decision No. 17-D-02, mentioned above.

29 FCA decision No. 17-D-07, mentioned above.

30 FCA decision No. 17-D-19, mentioned above.

31 General Court decision of 6 June 2002, case No. T-342/99, Airtours.

32 FCA decision No. 12-D-06 of 26 January 2012 concerning practices implemented in the civil engineering sector in Saint-Pierre-et-Miquelon.

33 In addition to FCA decision No. 12-D-06 mentioned above, see FCA decision No. 05-D-49 of 28 July 2005 concerning practices in the sector of hiring maintenance for postage machines; and No. 02-D-44 of 17 July 2002 concerning the water market sector. See also FCA decision No. 07-D-08 of 12 March 2007 concerning practices in the supply and distribution sector of cement in Corsica, which was partially dismissed by the Paris Court of Appeals with respect to collective dominance.

34 See FCA decisions No. 12-D-06, mentioned above; No. 05-D-49, mentioned above; and No. 02-D-44, mentioned above. See also FCA decision No. 07-D-08, mentioned above.

35 Paris Court of Appeals, 4 May 2004, CNPA v. Honda Motor ea. See also FCA’s decisions No. 14-D-07 of 23 July 2014; No. 10-D-08 of 3 March 2010; No. 04-D-26 of 30 June 2004; No. 02-D-77 of 27 December 2002 and No. 01-D-49 of 31 August 2001.

36 Paris Court of Appeals, 9 March 2010, SNCM.

37 FCA decision No. 12-D-25 of 18 December 2012 concerning practices implemented in the railway freight sector.

38 Paris Court of Appeals, 6 November 2014.

39 Paris Court of Appeals, 25 November 2015, Bottin Cartographes v. Google.

40 FCA opinion No. 14-A-18 of 16 December 2014 concerning a dispute opposing Bottin Cartographes to Google.

41 FCA decision No. 16-MC-01, mentioned above.

42 FCA decision No. 17-D-16, mentioned above.

43 Average avoidable costs are used by the FCA to assess the existence of predatory prices, and correspond to the fixed and variable costs that could have been avoided if the output subject to the FCA’s analysis had not been produced.

44 FCA decision No. 17-D-26, mentioned above.

45 FCA decision No. 17-D-08, mentioned above.

46 FCA decision No. 17-D-09, mentioned above.

47 FCA decision No. 14-D-04 of 25 February 2014 concerning certain practices in the online horse race bets sector.

48 FCA decision No. 15-D-05 of 15 April 2015 concerning certain practices in the passenger urban transport sector.

49 FCA decision No. 17-D-08, mentioned above.

50 FCA decision No. 17-D-17, mentioned above.

51 FCA decision No. 17-D-26, mentioned above.

52 FCA decision No. 17-D-06, mentioned above.

53 FCA decision No. 17-D-09, mentioned above.

54 FCA decision No. 17-D-13, mentioned above.

55 FCA decisions No. 08-D-09 of 6 May 2008 concerning practices implemented in the funeral industry sector in Lyon and its agglomeration; No. 04-D-70 of 16 December 2004 concerning practices implemented in the funeral industry sector in the Saint-Germain-en-Laye region; and No. 11-D-14 of 20 October 2011 concerning practices implemented in the funeral industry sector in the Manche department.

56 French Supreme Court, 3 March 2009, No. 08-14.435.

57 FCA decision No. 15-D-10, mentioned above.

58 FCA decision No. 08-D-16 of 3 July 2000 concerning practices in the ID photos sector.

59 FCA decision No 15-D-09 of 4 June 2015 on practices implemented in the mobile telephony equipment sector.

60 FCA decision No. 17-D-12, mentioned above.

61 FCA decision No. 04-D-65 of 30 November 2004 concerning practices in the postal services sector. See also FCA decision No. 05-D-32, mentioned above.

62 FCA decision No. 16-D-11, mentioned above.

63 FCA decision No. 11-MC-01 of 12 May 2011 concerning practices in the delivery of parcels to the collection points sector.

64 FCA decision No. 12-D-29 of 21 December 2012 concerning practices in the distribution of insurance products to the golfers sector.

65 FCA decision No. 15-D-16 of 27 November 2016 concerning the revision of the commitments of the French Federation of Golf.

66 FCA decision No. 17-D-21, mentioned above.

67 FCA decision No. 17-D-06, mentioned above.

68 FCA decision No. 17-D-08, mentioned above.

69 FCA decision No. 17-D-24, mentioned above.

70 FCA interim measures decision No. 03-MC-04 of 22 December 2003 concerning a request for interim measures filed by Messageries Lyonnaises de Presse.

71 Paris Court of Appeals, 31 January 2006, NMPP.

72 FCA decision No. 12-D-25, mentioned above, upheld by Paris Court of Appeal, 6 November 2014, SNCF.

73 FCA decision No. 14-D-06 of 8 July 2014 concerning practices in the medical information database sector.

74 Paris Court of Appeals, 25 September 2015, Cegedim.

75 FCA decision No. 17-D-11, mentioned above.

76 FCA decision No. 13-D-11 of 14 May 2013 concerning practices in the medicinal products sector. Upheld by the Paris Court of Appeals on 18 December 2014 and by the French Supreme Court on 18 October 2016.

77 FCA decision No. 13-D-21 of 18 December 2013 regarding practices implemented on the French market for high-dosage Buprenorphine sold in private practices.

78 FCA decision No. 17-D-25, mentioned above.

79 FCA decision No. 15-D-06 of 21 April 2015 concerning practices implemented in the online hotel booking sector.

80 FCA decision No. 15-D-01, mentioned above.

81 FCA decision No. 15-D-10, mentioned above.

82 FCA decision No. 17-D-02, mentioned above.

83 FCA decision No. 09-D-24 of 28 July 2009 concerning practices implemented in the telecommunications sector in overseas departments.

84 FCA decisions No. 06-D-23 of 21 July 2006 concerning practices in the map editing and tourist information sector; No. 07-D-28 of 13 September 2008 concerning practices implemented by the Havre Port authority; and No. 09-D-02 of 20 January 2009 concerning practices in the press distribution sector.

85 FCA decision No. 15-D-20 of 17 December 2015 concerning practices implemented in the telecommunications services sector.

86 FCA decision No. 10-MC-01 of 30 June 2010 concerning the practices of Google in the online advertising sector; No. 10-D-30 of 28 October 2010 concerning the practices of Google in the online advertising sector.

87 FCA decision No. 15-D-13 of 9 September 2015 on the request for interim measures by the company Gibmedia.

88 FCA decision No. 17-D-13, mentioned above.

89 Notice of 16 May 2011 on the Method Relating to the Setting of Financial Penalties.

90 French Supreme Court, 22 November 2016, No 14-28.224 and M.14-28.862 (partially quashing Paris Court of Appeals, 6 November 2014, SNCF).

91 FCA decisions No. 12-D-06, mentioned above; No. 12-D-24, mentioned above; No. 12-D-25, mentioned above; No. 13-D-06 of 28 February 2013 on practices implemented in the sector of teletransmission of tax and accounting data in EDI format to the tax administration; No. 13-D-11, mentioned above; No. 13-D-20 of 17 December 2013 concerning the practices implemented by EDF in the photovoltaic solar power sector; No. 13-D-21, mentioned above; No. 14-D-02 of 20 February 2014 concerning the practices implemented in the sports press sector; No. 14-D-05 of 13 June 2014 on practices implemented in the mobile telephony sector for household customers in La Réunion and Mayotte; No. 14-D-06, mentioned above; No. 14-D-08 of 24 July 2014 regarding practices implemented in the sector for the sale of fresh dairy products in the French West Indies; 15-D-01, mentioned above; 15-D-10, mentioned above; No. 15-D-17 of 30 November 2015 on practices implemented on the mobile telephony market for non-residential customers in La Réunion and in Mayotte; No. 15-D-20, mentioned above; No. 16-D-11, mentioned above; No.16-D-14, mentioned above; No. 17-D-02, mentioned above; and No. 17-D-06, mentioned above; No. 17-D-13, mentioned above; and No 17-D-25, mentioned above.

92 FCA decision No. 15-D-20, mentioned above.

93 FCA decisions No. 10-MC-01, mentioned above; No. 11-MC-01, mentioned above; No. 14-MC-01 of 30 July 2014 concerning practices in the pay TV sector (partially quashed by Paris Court of Appeals, 9 October 2014); No. 14-MC-02 of 9 September 2014 in the gas and electricity sector (partially quashed by Paris Court of Appeals, 31 October 2014) and No. 16-MC-01, mentioned above.

94 FCA decision No. 16-MC-01, mentioned above.

95 FCA decision No. 15-D-20, mentioned above.

96 FCA decision No. 14-D-06, mentioned above.

97 FCA decision No. 17-D-13, mentioned above.

98 FCA decision No. 02-D-44, mentioned above.

99 FCA decision No. 17-D-16, mentioned above.

100 FCA decision No. 17-D-09 mentioned above.

101 FCA decision No. 17-D-12, mentioned above.

102 FCA decision No. 17-D-21, mentioned above.

103 FCA decision No. 17-D-26, mentioned above.

104 FCA decision No. 16-MC-01, mentioned above.

105 FCA decision No. 15-D-13, mentioned above.

106 FCA decision No. 15-D-11 of 24 June 2015 concerning a request for interim measures for practices in the distribution sector of brown goods, in particular television sets.

107 See Notice of 2 March 2009 on the commitment procedure (engagements).

108 FCA decision No. 15-D-20, mentioned above.

109 FCA decision No. 17-D-02, mentioned above.

110 FCA decision No. 17-D-06, mentioned above.

111 Law No. 2016-1691, 9 December 2016 (article 148); Order No. 2017-303, 9 March 2017 on damages actions relating to anticompetitive practices; and Decree No. 2017-305, 9 March 2017 on damages actions relating to anticompetitive practices.

112 Paris Commercial Court, 16 March 2015, Outremer Telecom v. Orange.

113 FCA decision No. 09-D-36 of 9 December 2009 concerning practices in the mobile telephony sector in the Antilles and Guyana.

114 Paris Court of Appeals, 10 May 2017, Outremer Telecom v. Orange.

115 Paris Commercial Court, 18 December 2017, Digicel v. Orange.

116 Paris Commercial Court, 30 January 2012, Bottin Cartographes v. Google.

117 Paris Court of Appeals, 25 November 2015, Bottin Cartographes v. Google.

118 FCA opinion No. 14-A-18, mentioned above.

119 Paris Court of Appeals, 7 December 2016, Aviscom v. La Montagne.

120 Paris Commercial Court, 7 January 2014, Aviscom v. La Montagne.

121 French Supreme Court, 12 April 2016, No. 14-26815.

122 Paris Commercial Court, 12 February 2014, SFR v. Orange.

123 Paris Court of Appeals, 4 October 2014, SFR v. Orange.

124 French Supreme Court, 12 April 2016, No. 14-26815.

125 Paris Court of Appeals, 7 December 2016, Pétanque Longue/La Boule Obut.

126 Paris Court of First Instance, 22 February 2018, Betclic v. PMU.

127 FCA decision No. 14-D-04, mentioned above.

128 Law No. 2016-1691, 9 December 2016 (Article 148); Order No. 2017-303, 9 March 2017 on damages actions relating to anticompetitive practices; and Decree No. 2017-305, 9 March 2017 on damages actions relating to anticompetitive practices.

129 FCA decision No. 17-SOA-01 of 20 November 2017.

130 FCA statement of 19 October 2017 on the settlement procedure and compliance programmes.