COMPETITION • FRENCH LAW • RESTRICTIVE PRACTICES
It is unlawful to obtain or attempt to obtain any advantage that does not correspond to any consideration, or is manifestly disproportionate to the consideration given (Article L. 442-1, I, 1°).
Practices in the large-scale retail distribution sector, and especially “commercial cooperation” agreements, are the usual manifestation of this unfair practice. Prior to the Ordinance of 24 April 2019, the law set out a non-exhaustive list of advantages likely to give rise to abuse:
– participation, which is not justified by a common interest and without proportionate consideration, in the financing of a commercial promotion operation, an acquisition or an investment, in particular in the context of store renovations, mergers of retail chains or listing or purchasing groups, or the remuneration of services rendered by an international group of distributors;
– the artificial aggregation of revenues ;
– requesting an alignment with the commercial terms and conditions obtained by other clients;
– additional demands made during the performance of the contract, to maintain or increase its margins or profitability unjustifiably.
In its last form, the law no longer contains this list, but the report to the President of the Republic presents the offense as an umbrella practice, likely to group together the former violations listed.
To avoid application of the provision, distributors are required to show that the service has actually been performed, since its lack of definition or its imprecise definition may constitute proof to the contrary. Moreover, the service must be of real use to the supplier, and not only to the distributor, and must not have already been invoiced under another name.