COMPETITION • FRENCH LAW • RESTRICTIVE AGREEMENTS
French law, like European law, uses the concept of agreement, regardless of its form – bilateral or multilateral, written or oral, express or tacit – or its legal definition. An agreement exists when there is a genuine concurrence of wills in other words, an exchange of consents: the proposal of a memorandum of understanding containing a restriction of competition by one party which is not accepted by the other does not constitute such an exchange. The Court of Cassation even requires adherence to an anticompetitive plan: the alleged participants must have had the intention of taking part in a concerted action to restrict market access.
A unilateral declaration of intent does not constitute an agreement. Some acts, however, only appear to be unilateral. Thus, the defining by a supplier of its distribution policy can be considered as at least implicitly accepted by its distributors. For a restriction of competition to be found, however, the commercial terms must be anticompetitive and both suppliers and distributors must be aware of this. The mere convergence of the particular interests of two undertakings in objectively different situations is not sufficient to establish an agreement.
For the agreement to exist, it is not enough that the partners’ consent is real, it must also be freely given. No sanction can be imposed on undertakings that have been forced by the public authorities to engage in anticompetitive behavior. However, public intervention can only constitute a cause of exemption from the liability of the parties to the restrictive agreement if it forms the context of a binding legal requirement.