France

On February 20, 2020, the Paris Commercial Court dismissed the damages claim brought by various entities of Belgian retail group Louis Delhaize following the French Competition Authority’s 2015 sanction decision in the Dairy Products case.6[1]The Court considered that the claimants’ economic assessment of their harm was insufficiently substantiated, whereas the defendants were able to successfully raise the passing-on defense.

On February 19, 2020, the FCA expressed its views on the possible lines of approach to enhance antitrust enforcement in the digital sector, both at the EU and national levels. This publication covers questions relating to anticompetitive practices and merger control, and shows the FCA’s willingness to be part of the on-going thinking process launched by the European Commission and many competition authorities and regulators around the world in order to deal swiftly with questions raised by the growth of digital platforms. The FCA will endeavor to update its contribution in light of legislative proposals that could be formulated in the coming months and the reactions that the publication might trigger.

On January 29, 2020, the Cour de Cassation annulled the judgment of the Paris Court of Appeal in the interbank fees case for interpreting the concept of restriction by object too broadly. The Cour de Cassation noted that only coordination practices that harm competition to a sufficient degree may be qualified as restrictions by object. Absent a clearly established anticompetitive object, likely anticompetitive effects must be proven to establish an infringement of Articles 101(1) TFEU and L. 420-1 of the French Commercial Code.

On January 29, 2020, the Cour de Cassation issued two judgments relating to decisions from the FCA’s Rapporteur Général to waive the protection of business secrets granted to a party in proceedings before the FCA. In the first judgment, the Cour de Cassation held that the Rapporteur Général must provide concrete reasons in order to waive the protection of business secrets granted to a party in proceedings involving other parties. Conversely, in the second judgment, the proceedings did not involve any other parties, and the Cour de Cassation upheld the Rapporteur Général’s decision to waive the protection of business secrets initially granted to a party. The Cour de Cassation considered that the Rapporteur Général’s decision would not risk exposing that party’s business secrets to any third parties.

In February 2020, the FCA published a practical guide on the application of antitrust rules to small and medium-sized enterprises. The FCA published this guide with the knowledge that SMEs often lack the resources to be fully aware of and comply with antitrust rules.

On January 27, 2020, the French Competition Authority (“FCA”) accepted Lego’s commitments, thereby closing a five-year long investigation into the discount policy applied to distributors by the building games manufacturer.[1] Lego committed to redefine the criteria of its discount scheme to allow online distributors to obtain the same level of discount as brick-and-mortar distributors.

In January 2020, the FCA published its study on behavioral remedies in merger control and anticompetitive practices.[1] The study takes stock of the FCA’s decisional practice on behavioral remedies and provides material for broader discussion amongst competition law practitioners and academics.

On January 16, 2020, the FCA dismissed a complaint by French terrestrial digital television broadcaster towerCast which alleged that its competitor TDF’s acquisition of Itas,[1] constituted an abuse of dominance on the wholesale markets for digital terrestrial television broadcasting services (the “Decision”).

On January 9, 2020, the French Competition Authority (“FCA”) announced its main priorities for 2020.1[1] The regulator stressed that the digital and retail sectors would remain at the top of its agenda given the recent developments in these fields and the challenging competition issues they raise. Trade associations and unions may also face more significant fines while climate concerns may raise discussions between regulators to enhance environmental protection. On the legislative front, the FCA will follow the implementation of the ECN+ Directive in France and the upcoming revision of French merger control guidelines.

On December 26, 2019, the New Caledonian Competition Authority issued its first decision to impose sanctions, fining four undertakings, two suppliers and two distributors for having established exclusive import rights in the elevator sector (Decision 2019-PAC-05). The Authority issued a total fine of CFP 7.6 million (approx. 63,688 euros) and accepted the binding commitments offered by the four undertakings.