France

On December 20, 2023, the French Cour de cassation ruled that the French Competition Authority’s (“FCA”) Rapporteur Général is required to duly justify its decision to disclose business secrets.[1] Two days later, the Conseil d’État (the French administrative supreme court) requested a preliminary ruling from the Tribunal des Conflits in the same case to clarify whether an action seeking to enforce the right to the protection of business secrets should be heard by a civil or administrative court.[2]

On December 19, 2023, the French Competition Authority (“FCA”) fined Rolex for having prevented its authorized retailers from selling its products online for over ten years (the “Decision”).[1]  The FCA considered that such a prohibition constituted a vertical agreement restricting competition, rejecting Rolex’s argument that it was necessary to prevent counterfeiting and parallel trade.  The FCA imposed a fine of  €91 million, which is the highest fine imposed to date by the FCA in relation to a prohibition of online sales.  The FCA also investigated whether Rolex had engaged in resale price maintenance between 2011 and 2022, but ultimately rejected this prong of the complainants’ claim for lack of evidence.

On December 15, 2023, the French Competition Authority (“FCA”) published its Revised Leniency Guidelines, which repealed and replaced the 2015 guidelines.[1]  The Revised Leniency Guidelines were adopted as part of the implementation of the “DDADUE” law,[2] the ECN+ directive,[3] and the “Damages” directive.[4]  They aim to provide greater legal certainty for leniency applicants and modernize the leniency application procedure.

On December 11, 2023, the French Competition Authority (“FCA”) imposed a €4 million fine on Mariage Frères SAS and one of its subsidiaries, Mariage Frères International SAS (together, “Mariage Frères”), a French producer of premium teas.[1]  The FCA found that Mariage Frères had been prohibiting distributors from (i) reselling its branded products online and (ii) reselling its branded products to other retailers for over 14 years, two practices prohibited by the Vertical Block Exemption Regulation (“VBER”) under both the former and new regimes.[2]

On October 18, 2023, the French Cour de cassation upheld the Paris Court of Appeals’ ruling finding that the French Competition Authority (“FCA”) had rightly calculated the amount of the fine imposed on L’Oréal in 2014 for its alleged involvement in a cartel in the personal care products industry.[1] The French Cour de cassation confirmed that the sales of a subsidiary that did not itself participate in the infringement can be included in the calculation of the fine if these sales have been affected by the infringement sanctioned.

On October 12, 2023, the French Competition Authority (the “FCA”) published its Opinion on meal vouchers in response to the Government’s referral under Article L. 462-1 of the French Commercial Code.[1]  The FCA considered that the pricing cap envisaged by the government does not constitute the most appropriate response to market failures, i.e., the existence of entry barriers for potential new market entrants and the monopoly held by the four incumbent issuers. Therefore, the FCA issued five recommendations to address such failures.

The French Ministry for Economy has blocked under FDI rules U.S.-based leading provider of fluid motion and control products and services Flowserve Corporation’s (“Flowserve”) USD 245 million proposed acquisition of Velan Inc (“Velan”), a Canada-based leading provider of industrial steel valves.[1]  

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”).[1]  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.

Summary

On September 7, 2023, the French Competition Authority (“FCA”) imposed fines totaling €31.2 million on five companies active in the nuclear dismantling sector for colluding on tenders organized by the French Commission for Atomic Energy and Alternative Energies (Commissariat à l’Energie Atomique et aux Energies Alternatives, “CEA”) at a nuclear site in Marcoule, in the South of France.[1]

On September 6, 2023, the French Supreme Court (“Cour de cassation”) upheld the Paris Court of Appeal’s judgment which had dismissed Carrefour’s damage claim against Vania Expansion (“Vania”) [1] following Vania’s participation in the home and personal care cartel.[2]  The French Cour de cassation noted that it is up to the alleged victim to demonstrate that it has not passed on the overcharge to consumers.