COMPETITION • FRENCH LAW • RESTRICTIVE AGREEMENTS
Although express references to the actual context of the agreement are rarer than in European law, the French authorities also refer to the background of the cartel to assess its impact on competition. They accordingly take into account in their assessment the existence of any cumulative effects produced by networks of parallel contracts. An agreement that in itself produces only a minimal restriction of competition is likely to fall within the scope of Article L. 420-1 of the Commercial Code if it forms part of a pre-existing group of similar agreements
However, as the existence of similar agreements constitutes only part of the economic and legal context in which the agreement must be assessed, the widespread implementation of a distribution system does not necessarily lead to an infringement of competition. The mere finding of the existence of similar contracts is therefore not sufficient: it is necessary to consider whether a new competitor still has real possibilities of infiltrating the network of contracts. In order to sanction a cartel on the basis of a cumulative effect, two conditions must be met: the market must be foreclosed by a set of parallel contracts; the agreement submitted for assessment by the supervisory authorities must contribute significantly to the cumulative effect.
