In connection with the forthcoming transposition of Directive No. 2019/1 (the “ECN+ Directive”), which exposes professional associations to higher fines for anti-competitive practices, the French Competition Authority (“FCA”) has published a study on how competition law applies to professional associations and made a number of practical recommendations.
Competition law infringement by professional associations
Professional associations are organizations founded and funded by businesses that operate in a specific industry. The purpose of a professional association is to defend the interests of a profession or sector. In its study, the FCA recalls that the functioning of professional associations may facilitate anti- competitive behaviors and lead to competition law infringements, such as participation in a cartel (price fixing agreements, market sharing agreements, customer allocation, reciprocal limitations on outputs), sharing of commercially sensitive strategic information, sharing of price instructions, calls for boycott, discriminatory conditions to enter the professional association, adoption of restrictive technical standards, and denigration of competitors.
The FCA’s recommendations
The FCA’s study provides practical recommendations for professional associations to mitigate the risk of competition law infringement. These recommendations take the form of “DO’s & DON’Ts” practical sheets that cover professional requirements, pricing, exchange of information, membership conditions, standardization/ certification, and legal advice/relationship with public authorities.
Maximum fines for professional associations will increase significantly
The FCA’s study was published in relation to the upcoming transposition of the ECN+ Directive, which significantly increases the maximum fine that the FCA may impose on professional associations. Under French law, professional associations are currently exposed to a maximum lump-sum fine of €3 million, regardless of their size. The ECN+ Directive raises the maximum fine to 10% of the combined worldwide turnover of each of the professional association’s members.
The ECN+ Directive also changes the rules regarding the recovery of fines imposed on professional associations. In cases of insolvency, the FCA will be entitled to order the professional association to call for its members’ financial contributions and – if no payment is made – require any member whose representatives were part of the decision-making bodies of the professional association to pay the fine. The FCA may also require any member of the professional association that was active in the market in which the infringement took place to pay the fine.
The transposition of the ECN+ Directive into French law is expected to take place by June 2021.
 See French Competition Authority, Study on Professional Associations, January 2021, available (in French) at https://www.autoritedelaconcurrence.fr/sites/ default/files/EtudeThematique-OrganismesProfessionnels_final.pdf.
 See, for instance: French Competition Authority, Decision 08-D-32 of December 16, 2008 on practices implemented in the steel products trading sector; Decision 15-D-19 of December 15, 2015 relating to practices implemented in the standard and express delivery industry; and Decision 19-D-12 of June 24, 2019 on practices implemented by notaries in the real estate negotiation sector.
 See French Competition Authority’s website : media.autoritedelaconcurrence.fr/organismes-professionnels/#page=1.
 If the FCA does so, the relevant undertaking will not be able escape the fine unless it demonstrates that (i) it did not take part in the competition law infringement, (ii) it was unaware of the anti-competitive practice, and/or (iii) that it actively distanced itself from such practice before the investigation was opened.