COMPETITION • FRENCH LAW • RESTRICTIVE AGREEMENTS
Agreements between competitors that jointly organize the sale, distribution or promotion of their products may take several forms. Joint selling involves shared decisions on all commercial aspects of the sale of the product, including its price. More limited agreements may only deal with certain aspects of marketing, such as distribution or advertising. These agreements are not automatically anticompetitive unless they pertain to prices. According to the Competition Authority, there is nothing preventing competitors from conducting a common marketing policy, as long as this does not alter their independence, and prices are not set by undertakings that may be competitors, or are located in the same commercial area, where only suggested or maximum resale prices are possible. On the other hand, joint marketing structures exceed what is strictly necessary for the penetration and maintenance of their members on the market when they allow them to charge a single price for sales to mass retailers and hard discounters and to share customers and delivery volumes according to pre-assigned geographical zones. A grouped offer made by competitors also constitutes an unlawful agreement where it requires customers to use their services and precludes using those of any other providers.
Competitors may market their respective products under a single label, or a collective brand whose use is allowed based on objective qualitative selection criteria. In order to be positively assessed, the concertation must be inherent to the agreements and the economic advantages that the labels are seeking to ensure.