On October 20, 2022, for the first time, the French Competition Authority used its newly-acquired ability to reject a claim on the basis of enforcement priority and rejected Culture Presse’s claim in relation to an alleged abuse of a dominant position by La Poste in respect of postal stamps distribution.[1] Since the transposition into French law of the ECN+ Directive[2] and pursuant to the second paragraph of Article L. 462-8 of the French Commercial Code, the Competition Authority no longer has an obligation to investigate, and may now, by way of a reasoned decision, reject a complaint where it is not considered an enforcement priority.
Background
According to Culture Presse, a professional organization representing press merchants, La Poste abused its dominant position in the upstream market for the issuance of postage stamps by granting certain tobacco retailers better terms than those granted to press merchants, without justification, in violation of Article L. 420-2 of the French Commercial Code.
Culture Presse / La Poste Decision
The French Competition Authority held that Culture Presse’s complaint was not an enforcement priority because the alleged practice had no negative impact on final consumers, on the quality of the products, or on innovation, and its impact on the revenue generated by press merchants was negligible. The French Competition Authority also noted that this type of practice had already been subject to decisional practice and case law at both national and European levels and thus raised no novel issue. In addition, the plaintiff could still bring an action to enforce its rights before national courts. Consequently, the French Competition Authority found that this case would require the mobilization of resources that could be more usefully allocated.
The Guidelines
Concurrently with the Culture Presse / La Poste Decision, the French Competition Authority issued guidelines[3] in which it specifies the factors that it may consider to reject a complaint on enforcement priority grounds, thus providing stakeholders with a better understanding of the approach taken in assessing enforcement priorities. The enforcement priority of each case will be assessed by weighing the interest of the case, on the one hand, against the resources and time required to process the case, on the other hand.
The factors that enable the French Competition Authority to assess the merits of a case include, and are not limited to: (i) the potential seriousness of the alleged practice; (ii) the scope of the case in terms of the volume of business affected and the stakes involved; (iii) the need to clarify a legal or economic issue for stakeholders; and finally (iv) the strategic nature of the Authority’s intervention in a given case.[4]
[1] See Culture Presse / La Poste (Case 22-D-19) French Competition Authority decision of October 20, 2022 (“Culture Presse / La Poste Decision”).
[2] Directive (EU) 2019/1 of the European Parliament and the Council of December 11, 2018 (“ECN+ Directive”) was transposed into French Law by Order 2021-649 of May 26, 2021. Article 4, paragraph 5 of the ECN+ Directive empowers national administrative competition authorities “[t]o the extent they are obliged to consider formal complaints” […] to “have the power to reject such complaints on the grounds that they do not consider such complaints to be an enforcement priority”.
[3] See French Competition Authority Press Release “Guidelines on the implementation of dismissal on enforcement priority grounds” (free translation from French), October 20, 2022 (the “Guidelines”).
[4] The strategic nature of the Authority’s intervention in a given case can be assessed with respect to: (a) whether the Authority is best placed to intervene; (b) whether the claim is sufficiently serious and whether evidence can be gathered in the most efficient way; (c) whether the Authority can assess the effects of the practice; (d) the date of the alleged infringement and whether it has ceased; and (e) whether there is an ongoing procedure on the same or similar facts, or whether there has already been a decision in this respect.