COMPETITION • FRENCH LAW • RESTRICTIVE AGREEMENTS
Successive behavior carried out in a sustained and organized manner with a common purpose constitutes a single infringement irrespective of the degree of individual participation of each undertaking. Different behaviors must thus be considered as part of an overall plan when they pursue the same objective, relate to the same products and are adopted by the same basic core of undertakings having participated in all the components of the offense. Only the existence of a common purpose is required: proof of the complementary nature of the practices is not necessary. The fact that certain undertakings do not attend some meetings, failure to comply with the agreement, rivalry and even cheating do not prevent the finding that they equally participated in a single infringement: the undertakings incur vicarious liability. The varying extent of their participation in the agreement is only taken into account at the sanctioning stage. However, undertakings coming late to the circle of anticompetitive meetings, at a time when the discussions in question were of a quasi-public nature, cannot, particularly when they concerned them only very marginally, be considered to have participated in a complex infringement. Likewise, the participation of an undertaking in a cartel cannot be inferred from evidence which establishes only bilateral meetings which do not demonstrate its knowledge of the other aspects of the infringement.
The infringement is single and complex where despite a period of suspension, they are resumed under similar conditions. The fact that an undertaking suspends its participation in the anticompetitive meetings for 19 months does not prevent it from incurring liability for a complex and continuous infringement insofar as subsequent evidence of its participation in that infringement is established by its presence at other meetings which pursue the same objective and give rise to exchanges of information of the same nature between the same undertakings. In addition, the monitoring of adherence to the practices by the parties involved is itself sufficient to establish the continuity of their participation in the infringement for the two years between two meetings, even if no material act of execution has been observed, where a non-aggression pact between them did not require the holding of regular meetings. It also does not matter whether certain elements of the infringement have ceased when others have never been significantly interrupted. Indeed, after the last meeting, the persistence of the common objective can manifest itself in other forms, such as pressure on mavericks or making contacts with a view to preventing drops in prices. Similarly, a mere reduction of the intensity of a cartel does not lead to its ending when it does not result from a distancing by the participants but from circumstances beyond their control.
The Competition Authority has recently imported the concept of repeated infringement, developed by the EU judicature, according to which an agreement which has had a period of interruption of almost a year and a half must be qualified as single and repeated infringement where, before and after the period, it was characterized by identical terms of implementation, participants, relevant products and geographical scope.
In order to establish a company’s participation in a single agreement involving undertakings other than those with which their has been direct collusion, the Court of Cassation, following the lead of the ECJ, held that it must be shown that the undertaking intended to contribute by its own conduct to the common objectives pursued by all the participants and that it was aware of the actual conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and that it was prepared to take the risk. An undertaking which has not been informed of the exact extent of the contacts to which it was not a party can therefore only be held responsible for the practices for which its participation is established. A complex infringement may coexist with a one-time agreement.
