Background
The ESF operates as the network of ski instructors affiliated with the SNMSF, bringing together more than 16,000 members, representing more than 80% of all active ski instructors in France.[2]
In 2006, the SNMSF amended its standard agreement and introduced an exclusivity obligation prohibiting ESF instructors from teaching in a competing structure and from developing their personal clientele.[3] The clause was particularly broad in so far as it applied to all categories of instructors (permanent, non-permanent, and trainees), all disciplines (including for example, snowboarding and telemark), and all lesson formats (group and individual) on a year-round basis.[4] The breach of this exclusivity obligation was subject to graduated sanctions, ranging from warnings to temporary or permanent exclusion.[5]
In 2013, the SNMSF further reinforced the restrictive nature of the exclusivity obligation by (i) introducing an automatic exclusion from the SNMSF for teaching in a competing structure, (ii) prohibiting instructors from joining any ski instructors’ union other than the SNMSF and (iii) introducing a specific suspension sanction for instructors who failed to channel all teaching revenues through the ESF’s collective revenue-sharing system. [6]
Restriction by Object
The FCA found that the exclusivity obligation amounted to a restriction of competition by object, which arose from a horizontal agreement between competing ski instructors acting through the SNMSF on the national market for ski instruction.[7] The FCA considered that the clause was designed to restrict the SNMSF members’ commercial freedom and their ability to work for competing structures.[8] It further considered that the obligation was backed by sufficiently deterrent sanctions, capable of discouraging both parallel activity with competing schools and transitions to rival structures.[9] The FCA also found that, in a market where qualified instructors constitute a key competitive input on which the ESF enjoys a preeminent position, the exclusivity obligation contributed to the foreclosure of competing ski schools by restricting their access to instructors.[10] The FCA found that the exclusivity obligation, by its very nature, resulted in a sufficient degree of harm to competition, thereby constituting a restriction by object under Article 101(1) TFEU and Article L. 420-1 of the French Commercial Code.[11]
The First Application of Article L. 464-2 VI of the French Commercial Code
Following the transposition of the ECN+ Directive in 2021,[12] Article L. 464-2 of the French Commercial Code increased the exposure of associations of undertakings and their members to antitrust fines. Prior to 2021, fines imposed on trade associations were capped by reference to the association’s own resources. Following the transposition of the ECN+ Directive, where an infringement committed by an association relates to the activities of its members, the maximum fine may now reach 10% of the aggregate worldwide turnover of the members active on the affected market.
The reform also introduced a dedicated recovery mechanism for associations of undertakings. Where an association is unable to pay a fine, the FCA may require it to seek contributions from its members and may pursue certain members directly for any shortfall. As a result, anticompetitive conduct committed through an association now exposes both the association and its members to significant financial liability.
This Decision marks the FCA’s first application of these provisions. Although the €3.4 million fine imposed on the SNMSF remained well below the statutory cap, the FCA ordered the association to seek contributions from its members should it prove unable to pay the fine with its own resources.[13]
Conclusion
First, the Decision highlights the FCA’s continued focus on labor-market restrictions, extending its scrutiny from no-poach arrangements[14] to broad exclusivity obligations imposed on workers, including independent contractors. Second, it confirms that sports federations, professional bodies and other associations of undertakings remain subject to competition law when their rules restrict members’ ability to compete. Third, the Decision illustrates the growing antitrust liability risks for association members, who may now be held financially liable where an association is unable to pay a fine.[15]
[1] FCA Decision No. 26-D-03 of March 17, 2026 regarding practices in the alpine ski instruction sector(the “Decision”).
[2] See Decision, para. 22.
[3] See Decision, paras 73 and 75.
[4] See Decision, paras 202-205.
[5] See Decision, paras 66-67.
[6] See Decision, paras 87-100.
[7] See Decision, paras 198 and 250.
[8] See Decision, paras 199-200, 228 and 243.
[9] See Decision, paras 207-208.
[10] See Decision, paras 227, 229
[11] See Decision, paras 224, 248-250.
[12] Directive (EU) 2019/1 of the European Parliament and of the Council of December 11, 2018 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market (“ECN+ directive”), transposed into French law by Decree No. 2021-568 of May 10, 2021 and Order No. 2021-649 of May 26, 2021.
[13] See Decision, paras 304-309.
[14] See FCA Decision No. 25-D-03 of June 11, 2025 regarding practices implemented in the engineering and technology consulting sectors, as well as in the IT services sector. See the Summer 2025 FCLN article here.
[15] In April 2026, the FCA applied the new Article L. 464-2 regime for a second time; see FCA Decision No. 26-D-05 regarding practices implemented in the organic food distribution sector.