COMPETITION • FRENCH LAW • RESTRICTIVE AGREEMENTS
Traditionally, participation in a meeting with competitors for the purposes of fixing prices did not in itself constitute proof of a cartel and attendance at a later meeting or subsequent price alignment was required to prove collusion under French law. The Competition Authority then distinguished between meetings held within the statutory framework of a professional organization and informal meetings between competitors. For the former, the usual case law continued to apply: an undertaking had adhered to a price-fixing agreement decided at a meeting where there was actual dissemination or application of the instructions given or if, when it was present at the initial meeting, the undertaking then attended a later meeting having the same anticompetitive object. The solution was justified by the idea that a company regularly convened to a members’ meeting could not have known of its anticompetitive object. In the latter case however, the French competition authorities applied the same standard of proof as the European authorities: participation in a single meeting, even passively, was sufficient to prove adherence to the cartel by the undertaking concerned. Where Article 101 TFEU is concurrently applicable to the practice, the Competition Authority now considers that the participation of an undertaking in a single meeting, whether statutory or not, establishes its adherence to the practices. The agreement is constituted when participation reflects membership in a collective action. While participation in a single meeting is a sign of the undertaking’s adherence to the cartel, it is not sufficient to prove its participation in the infringement until the end, even in the absence of public distancing, where, after that meeting, the practice continues for several years without it attending the other collusive meetings and without any further evidence of continued anticompetitive behavior on its part.
An undertaking whose director is invited to attend one of the informal meetings held between competing companies must either refuse to participate or, if he attended in good faith, distance himself immediately and publicly from the anticompetitive mechanism in question. The fact that the position of the undertaking having participated in information exchanged was already established because it had already fixed its own price increase does not detract from the strategic interest in the data received from other participants or alter its status as a participant in the information exchange, insofar as it attended the contested meetings and remained active on the market. Similarly, the provision of sensitive information on a company’s own policy to its competitors, characterizes the company’s participation in the cartel even if it reflects its choice to adopt different behavior from them, as such behavior does not constitute a public distancing. The early departure from a meeting does not reflect a public distancing from its anticompetitive object either where the representative of the company shared secret information on its strategy before leaving. Further, an alignment with conduct that an undertaking knows to be concerted demonstrates sufficient adherence for it to be considered a party to the anticompetitive agreement.
