COMPETITION • FRENCH LAW • RESTRICTIVE AGREEMENTS
Certain agreements or practices are by their nature capable of restricting competition. They have such a high potential of negative effects on competition that it is unnecessary to demonstrate their actual or appreciable effects. Therefore, when the legislator introduced an appreciability threshold, it provided for exceptions in the event of particularly serious harm to competition. Article L. 464-6-2, like the corresponding European legislation, sets out a list of hardcore restrictions which will not be exempted even if the market share of the participants falls below the appreciability threshold. According to case law, restrictions by object are practices which by their very object have such a high potential of negative effects on competition that it is unnecessary to demonstrate any effects, such as market sharing agreements, boycotts, bid rigging (cover bids), disparagement strategies intended to delay the entry to the market of generic drugs; price differentiation, blocking or monitoring of imports aimed at preventing alternative resellers from developing their business and competing on prices; horizontal price-fixing agreements; information exchanges on future prices, as well as the vertical practices of resale price maintenance, the prohibition of passive sales or exports, or the requirement of a pharmacy graduate present at the point of sale for the marketing of dermo-cosmetic products. Like the EU judicature, the French authorities consider that the finding of the anticompetitive object of an agreement does not require concrete proof of a direct link of the practice with the prices paid by the end customer or consumer prices or with the existence of a disadvantage to consumers. Moreover, the possibility of referring to the previous case-law to characterize evidence of the harmful nature of a practice does not mean that that harmful nature must already have been recognized by a decision classifying it as an infringement by object insofar as the competition authorities have previously proven it to be harmful by its effects. . Further, in the case of a type of anticompetitive agreement whose history and previous decision-making practice attest to its particular harmfulness, the Competition Authority may limit its analysis of the legal and economic context to what is strictly necessary to conclude that there is a restriction of competition by object.
In some cases, however, the supervisory authorities may rule out the characterization of a restriction by object even when the practice relates to price fixing or market sharing if it pursues a legitimate objective, such as the provision of quality products and services at competitive prices.
