In a decision dated September 26, 2023, the French Competition Authority (“FCA”) imposed a €750,000 penalty on the French tobacco shops trade union, the Confédération Nationale des Buralistes de France (“CNBF”),for boycotting practices (the “Decision”). The FCA found that the trade union had sought to exclude rivals from the distribution of gambling games issued by La Française des Jeux (“FDJ”), the state-owned company responsible for operating the national lottery in France.
In France, tobacco shops distribute gambling games issued by FDJ. They account for approximately 76% of FDJ’s turnover and, therefore, constitute a major distribution channel for FDJ’s gambling games.
In September 2013, FDJ sought to expand its distribution network by entering into a partnership agreement with Réseau Fleuri, a network of 7,500 florists, enabling them to sell gambling scratchcards together with their bouquets (the “Bouquet Chance”). The partnership evolved, and partner florists were subsequently allowed to distribute additional scratchcards and gambling games, including Loto, EuroMillions, and Keno grids.
The FCA found that, in retaliation for FDJ’s decision to include florists in its distribution network, the CNBF encouraged its members to (i) carry out negative press campaigns against FDJ’s new partnership with Réseau Fleuri and (ii) refuse to register online games, in an attempt to pressure FDJ into terminating its partnership with Réseau Fleuri.
These practices were carried out at a national and local level, with the regional trade unions, members of CNBF, relaying and implementing the actions that were agreed at a national level.
As a result of these boycotting practices, in September 2016, FDJ informed Réseau Fleuri of its decision not to renew the “Bouquet Chance” contract and to suspend its partnership.
The FCA has jurisdiction to enforce competition rules over trade associations insofar as their actions go beyond their traditional remit of defending their members’ interests and insofar as they invite their members to adopt a particular conduct on the market.
In this case, the FCA found that CNBF’s actions went beyond the mere defense of its members’ professional interests by encouraging its members to carry out negative press campaigns and refuse to register FDJ games.
The FCA also found that even though the boycotting actions may have been initiated by local regional federations and chambers of tobacconists, CNBF’s decisions reflected the common will of its members, because the President of CNBF explicitly expressed support for these actions in various news publications, and CNBF tacitly approved these initiatives by not publicly distancing itself from them.
In its Decision, which was adopted through simplified proceedings, the FCA found that the boycotting practices constituted a by-object restriction of competition because they were carried out for the purpose of excluding rivals by forcing the FDJ to terminate its partnership with Réseau Fleuri. The FCA also specified that, in respect of by-object restrictions, it was irrelevant whether the actions were successful in achieving their desired objective.
In regard to the financial penalty, given CNBF’s lack of turnover, the FCA decided to apply a flat-rate fine, taking into account the gravity of the infringement, which was considered particularly severe, and the duration of the practices, which was relatively short, spanning from August to September 2016. The flat-rate fine was set at €750,000, which corresponds to the legal cap that was applicable to simplified proceedings and was recently repealed by Law no. 2020-1508 of December 3, 2020, transposing Directive 2019/1 of the European Parliament and of the Council of December 11, 2018 (sanctions imposed on trade associations can now be as high as 10% of their members’ aggregate turnovers).
 French Competition Authority, Decision No. 23-D-09 of September 26, 2023.
 For infringements which ended after May 26, 2021, the date on which Decree 2021-649 transposing Directive 2019/1 of the European Parliament and of the Council of December 11, 2018, was published.