COMPETITION • FRENCH LAW • RESTRICTIVE AGREEMENTS
Unlike the TFEU, the Commercial Code does not specifically address decisions by associations of undertakings. Under French law, collective decisions adopted by professional associations are simply treated as collusive practices, the management bodies of the associations being considered as acting on behalf of their members. There is no doubt that instructions, directives or recommendations issued by professional associations to their members or even to third undertakings represent agreements within the meaning of Article L. 420-1 in the same way as agreements concluded between undertakings within the framework of these professional organizations. The same applies to decisions or recommendations issued by the professional orders, at least when they “do not constitute acts of public authority […] liable, as such, to be appealed before the administrative court”.
However, given that the concerted nature of the conduct is not as apparent in these situations as in the case of a straightforward agreement, the supervisory authorities most often identify decisions adopted by trade associations and professional orders as concerted practices.
