COMPETITION • EUROPEAN AND FRENCH LAW • RESTRICTIVE AGREEMENTS
In order to fall under prohibition, it is not necessary for the restriction to harm an existing competitive situation (actual competition), it is sufficient for it to prevent future competition (potential competition). Potential competition, in the absence of actual competition, may be established in a market where there are real and concrete – and not merely theoretical and abstract – opportunities for undertakings to compete with each other or for a new entrant to enter the market and compete with the undertakings established there. However, it is not necessary to demonstrate the certainty of such entry or that it will be successful. In matters relating to restrictive agreements, potential competition plays a central role in the assessment of the existence of a restriction of competition.
There are different degrees of probability of impediment to potential competition. Potential competition is always impeded when it is certain, as in the case of exclusive distribution agreements. Competition law sometimes goes further, prohibiting harm to potential competition, even if there is no certainty that it will occur. Thus, when competition authorities prohibit cooperation agreements or agreements to create a joint subsidiary because they restrict competition that could have existed in the market if each of the parties had carried out the joint activity alone, they are criminalizing a purely potential restriction of potential competition.