The 5 news of the week – November 25, 2024

Restrictive agreement
While neither the principle of a scheme of tariff exceptions, nor the contractual documents governing them, constitute resale price-fixing agreements per se, the practical implementation of such a scheme may have resulted in the supplier fixing the selling prices granted by the distributor to the end customer, a practice which has consistently been characterized as a restriction of competition by object.
Competition Authority, 29 October 2024, No. 24-D-09

Restrictive agreement
While the existence of a take-up level in excess of 80% of maximum or recommended prices by distributors is traditionally used as an indication of adherence in the context of the three-pronged test, this criterion is not required when the compliance of distributors can be established by other means such as direct documentary evidence, and, in any event, by a body of precise, serious and consistent evidence.
Competition Authority, 29 October 2024, No. 24-D-09

Restrictive agreement
Vertical price agreements are hardcore restrictions within the meaning of Regulations No 2790/99 and No 330/2010 and do not qualify for block exemption since they are inherently harmful to competition, do not contribute to improving product distribution, and are by no means necessary to produce efficiency gains.
Competition Authority, 29 October 2024, No. 24-D-09

Investigations
The conditions governing abuse of process based on the use of Article 40 of the Code of Criminal Procedure, investigations carried out under a rogatory commission and a request for the disclosure of criminal investigation documents under Article L. 463-5 of the Commercial Code are not fulfilled, since the various actions reflect the exercise of prerogatives belonging to different authorities.
Competition Authority, 29 October 2024, No. 24-D-09

Franchise
The final word in the Fra-Ma-Pizz case: although termination of the franchise agreement cannot be attributed solely to the fault by the franchisor’s parent company where only the franchisor’s misconduct has been established, the award of damages against the parent company based on its extra-contractual liability for implementing a development strategy that contributed to the franchisor’s breaches of contract, must be upheld.
Cass. com., 14 November 2024, No 23-15.321