17 february 2020

Unfair terms between professionals: Subjection
The finding of absence of any subjection element during the negotiation of a contract may arise from the emails exchanged and the modifications made to the draft contract by each of the parties, which reveal that discussions have taken place concerning the terms and show that they have not been imposed by either party on the other but have been discussed and agreed upon.
CA Paris, 30 January 2020, LawLex20200000188JBJ

Unfair terms between professionals: Subjection to
The service provider having bid in a call for tenders with knowledge of the terms specific to it and having offered a price in line with them cannot claim any significant imbalance since the conscious decision to participate in the competition excludes the existence of any subjection.
CA Paris, 31 January 2020, LawLex20200000187JBJ

Sudden termination of established commercial relationship: Volume of business
The service provider who seeks to rely on the series of contracts with the developer over seventeen years further to calls for tenders does not prove the existence of an established commercial relationship if unable to show its turnover for that period, its significance, its constant progression and its importance to its business activity.
CA Paris, 31 January 2020, LawLex20200000187JBJ

Sudden termination of established commercial relationship: Refusal to order
The significant drop in the volume of orders placed by the client characterizes a sudden termination of the established commercial relationships when the alleged correlation of this with the decrease in the client’s own turnover is not apparent and he used another supplier during that period.
CA Paris, 5 February 2020, LawLex20200000190JBJ

Anticompetitive agreements: Unilateral declaration of intent
The exchanges of information carried out via a professional association do not constitute a unilateral practice attributable to the latter alone, since its members, who could reasonably foresee that the information in question would be provided to them, never stated that they no longer wished to receive it.
Competition Authority, 17 December 2019, LawLex20200000176JBJ

Anticompetitive agreements: Restriction by object
The statutes and rules of procedure of a professional association which allow the foreclosure of the market by limiting the entry of new operators, and, within the market, by slowing down the development of an offer of dematerialized vouchers, constitute a restriction by object.
Competition Authority, 17 December 2019, LawLex20200000176JBJ

Abuse of dominant position: Definition
The definition and application of unfair trading conditions are capable of undermining the normal functioning of the entire market on which the dominant undertaking operates, when the latter is in a monopoly position, has extremely high market shares or occupies an “extraordinary” dominant position.
Competition Authority, 19 December 2019, LawLex20200000177JBJ

Abuse of dominant position: Unfair trading conditions
The victim of anticompetitive practices has the right to compensation not only for the direct and immediate loss of business volumes resulting from the anticompetitive practice, but also for the inevitable loss due to the delayed effect of the practice, consisting in the drop in business volumes caused by the inability to maintain the loyalty of the poached customers.
Competition Authority, 19 December 2019, LawLex20200000177JBJ

Abuse of dominant position: Unfair trading conditions
The lack of objectivity and transparency of the operating rules of Google Ads defined by Google, which are unstable and can be modified without the provision of clear information or the systematic notification of advertisers, has enabled the dominant undertaking to apply them in an unfair and random manner, by establishing differences in treatment between similar operators and by adopting, with regard to the same publishers, reversals of position reinforcing both the opacity of the rules and Google’s margin of discretion.
Competition Authority, 19 December 2019, LawLex20200000177JBJ

Abuse of dominant position: Conditions for prohibition
The demonstration of a disproportionate advantage to the profit of the dominant undertaking is not necessary to establish abuse.
Competition Authority, 19 December 2019, LawLex20200000177JBJ

Commitments: Competition Authority’s power of assessment
The rapporteurs are not obliged to carry out a preliminary assessment when the Authority has used its discretion not to implement the commitments procedure.
Competition Authority, 17 December 2019, LawLex20200000176JBJ

Fine: Value of sales to which the infringement relates
The value of sales to which the infringement relates is that of the products constituting the market, independently of whether or not some of them have been affected by the practices in question.
Competition Authority, 17 December 2019, LawLex20200000176JBJ

Fine: Belonging to a group
The huge global financial resources of the group to which the party responsible for the practices belongs and to which they are attributed as an undertaking, justify, taking into account the deterrent requirement, a 70% increase of the fine.
Competition Authority, 17 December 2019, LawLex20200000176JBJ