On December 28, 2021, the French Competition Authority (“FCA”) dismissed a claim brought against Samsung by one of its authorized distributors regarding alleged anticompetitive agreements in the sale of consumer electronics.[1]

The case goes back as early as 2014, when distributor Concurrence lodged a multi-pronged complaint with the FCA, claiming that Samsung had participated in both vertical and horizontal anticompetitive practices[2] and requesting interim measures. On July 23, 2014, the FCA rejected the request for interim measures, dismissed a number of these claims for lack of evidence, and decided that the investigation should continue on a limited number of practices, including the legality of Samsung’s selective distribution agreement and its implementation, and the access to products for distributors or price discrimination between distributors.[3]

The December 28, 2021 FCA decision marks the end of the FCA investigation on these outstanding matters, resulting in the FCA ultimately dismissing all of Concurrence’s remaining claims.

The FCA first pointed out that Concurrence had already filed a complaint with the European Commission (the “Commission”) in parallel, for the same alleged anticompetitive practices. As the Commission’s case already covered two of the litigious clauses in Samsung’s selective distribution contract,[4] the FCA rejected Concurrence’s claim on these matters.[5]

In respect of the other claims, and in particular as regards the clause requiring Concurrence to provide its installation services for the products sold via its brick-and-mortar stores within a “reasonable” catchment zone without specifying a maximum distance or travel time, the FCA found that there were no grounds to consider them anticompetitive. In reaching that conclusion, the FCA found that (i) as the contracts applied throughout Europe, a specified distance criteria  may have been discriminating against certain distributors depending on their location, and that (ii) if the retailer was unable to provide the installation service, it could appoint an alternative installer.[6]

Finally, the FCA ruled that Samsung was entitled to prohibit the marketing of products on online marketplaces, and found that the other practices Concurrence claimed Samsung had engaged in, such as restricting access to certain products and related information,[7] price discriminating between its various resellers, and excluding online purchases from a number of promotional operations, were not found to have had the object or effect of restricting competition.

[1]      FCA Decision No. 21-D-30 of December 28, 2021 relating to practices implemented in the sector of the distribution of brown products.

[2]      For details on all requests, see FCA Decision No. 14-D-07 of July 23, 2014, para. 35.

[3]      See FCA Decision No. 14-D-07 of July 23, 2014, which was upheld by a Paris Court of Appeals ruling of December 3, 2015 (no. 2014/18125). Concurrence subsequently filed a second request for interim measures which was rejected by the FCA in 2015. See FCA Decision No. 15-D-11 of June 24, 2015.

[4]      I.e., the clauses relating to (i) the compulsory demonstration of the product at home for any customer buying online and (ii) the extension from seven to 30 days of the cooling-off period.

[5]      Based on Article L. 462-8 of the French Commercial Code, which provides that the FCA may also reject the claim if it is informed that another national competition authority of a Member State of the European Union or the European Commission has dealt with the same facts falling under the provisions of Articles 101 and 102 of the Treaty on the Functioning of the European Union.

[6]      The distribution contract provided that if the retailer was unable to provide an installation service, it should: “(i) appoint an installer to perform the installation (at the customer’s expense) provided that the […] retailer has first verified that the installer appointed by it can comply with the specifications and installation instructions given by SAMSUNG, or (ii) refer the customer to SAMSUNG in order for the latter to inform it of any company able to perform the installation service.”

[7]      Some of Samsung’s products were not available to Concurrence, but only to some of Samsung’s partners.