COMPETITION • FRENCH LAW • RESTRICTIVE AGREEMENTS
Following the example of European law, French law has adopted a de minimis threshold. Article L. 464-6-1 creates an optional discharge for restrictive agreements that do not concern public contracts, and where the combined market share of the parties to the agreement or practice does not exceed :
– 10% if the agreement concerns existing or potential competitors (horizontal agreement);
– 15% if the agreement or practice is implemented by non-competitors (vertical agreement).
The thresholds are the same as those set by the Commission in its De Minimis Notice of 30 August 2014. However, the French legislation does not include the 5% threshold provided for in the notice in the event of a cumulative foreclosure effect.
Exceptions that concern hardcore restrictions of competition are defined in Article L. 464-6-2 of the Commercial Code. The de minimis rule does not apply to price-fixing agreements, agreements limiting output or sales, market or customer allocation agreements, or prohibitions on passive sales. Selective distribution is also subject to two special provisions. In order for the de minimis rule to apply, distributors must not be subject to sales restrictions as retailers, with the exception of those concerning sales from an unauthorized location, and cross-supplies must be permitted, whether the distributors are located at the same or a different level of trade.
