Abstract
As is the case in most countries, the approach adopted in France is that of market power rather than size, given that, with a few rare exceptions (niche market for instance), a small size entails small market power.
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Notes
- 1.
Article 2 of the annex to the Commission’s recommendation, OJ L. 124 of 20.05.2003: “To gain a better understanding of the real economic position of SMEs and to remove from that category groups of enterprises whose economic power may exceed that of genuine SMEs, a distinction should be made between various types of enterprises, depending on whether they are autonomous, whether they have holdings which do not entail a controlling position (partner enterprises), or whether they are linked to other enterprises.”
- 2.
See the Law on the self-employed, law no. 2008-776 of 4 August 2008, Chapter 1.
- 3.
French Labour Code, Art. L.2312-1.
- 4.
French Labour Code, Art. L.2312-1.
- 5.
French Labour Code, Art. L.2312-1.
- 6.
For instance rules relating to compliance programmes and sanctions, see Sect. 7.3.4 of this contribution.
- 7.
OJ L. 124 of 21 May 2003.
- 8.
- 9.
It should be noted that different levels of statistics are possible, since several companies are associated with each decision and each company can be the source of several complaints. Statistics can thus be created by decision, by “company-decision” coupling, or by “company-complaint” coupling. The preferred level for an SME study seems to be the “company-decision” coupling.
- 10.
A simple probit model that tests the probability of appeal according to practice, sanction level, and the fact of being an SME shows a significant effect of 1 % due to being an SME.
- 11.
Competition Council, Decision no. 96-499 of 7 June 1996 relating to agreements between producers benefiting from signs of quality in the agricultural sector (OJ 11 June); Decree no. 96-500 of 7 June 1996 relating to agreements between agricultural producers or between agricultural producers and companies regarding adaptation measures for crisis situations (OJ 11 June); Decree no. 2007-1884 of 26 December 2007 regarding an agreement relating to payment periods in motor vehicle subsidiaries (OJ 30 December); Opinion no. 07-03 given by the ECCP (BOCC 31 July 2007) and no. 07-A-14 of 9 November 2007 of the Competition Council (BOCC 4 March 2008).
- 12.
See Article L 494-9 of the Commercial Code.
- 13.
See, for instance, rules governing billing, Article L.441-3 of the Commercial Code, rules governing the formalisation of commercial negotiation, Article L.441-7.
- 14.
Article L. 442-2 of the Commercial Code.
- 15.
Article L. 464-6-1 of the Commercial Code.
- 16.
Article L. 420-4 I of the Commercial Code.
- 17.
These proposals are taken from the CREDA report, SMEs and competition law, LexisNexis LITEC, November 2009, which readers are invited to read for a more detailed introduction (pp. 211–255).
- 18.
- 19.
See Article L. 441-3 of the Commercial Code.
- 20.
Article L. 441-7 of the Commercial Code.
- 21.
Article L. 442-2 of the Commercial Code.
- 22.
Decision EC-IV/34 of 29 April 1994, OJEC L. 131/15 of 26 May 1994.
- 23.
In the more recent case, Irish beef, the European Court of Justice was more restrictive than the Commission’s decision in Stichting Baksteen, ECJ, case C-209/07, Competition Authority v Beef Industry Development Society Ltd and Barry Brothers (Carrigmore) Meats Ltd (“BIDS”), ECR 2008 I-8637.
- 24.
Article L. 464-9 of the Commercial Code: The Minister of the Economy can order companies to terminate the practices outlined in Articles L. 420-1, L. 420-2 and L. 420-5 which they originated, when these practices affect a local-sized market, and do not concern deeds relating to Articles 81 and 82 of the treaty instituting the European Community, subject to the condition that the turnover of each of the companies achieved in France over the previous financial year does not exceed EUR 50 million and that their total turnover does not exceed EUR 100 million.
The Minister of the Economy can also, under the same conditions, offer a compromise, or settlement. The value of the settlement can exceed EUR 75,000 or 5 % of the last known turnover figure in France if this value is lower. The procedures of the settlement are set down by decree by the Council of State. Performance within the stipulated timeframes of the obligations resulting from the injunction and acceptance of the settlement terminates all actions before the Competition Authority for the same deeds. The Minister of the Economy notifies the Competition Authority of any settlement concluded.
He or she cannot offer a settlement or impose an injunction when the same deeds have previously been subject to a referral to the Competition Authority by a company or a body outlined in the second paragraph of Article L. 462-1.
In the event of a refusal to reach a settlement, the Minister of the Economy refers the matter to the Competition Authority. He or she also refers the matter to the Competition Authority in the event of non-performance of the injunctions scheduled in the first paragraph resulting from the acceptance of the settlement.
- 25.
See, for a recent example, Decision no. 12-D-06 of 26 January 2012 relating to practices implemented in the aggregates sector and downstream markets in Saint-Pierre-et-Miquelon.
- 26.
SMEs and competition law, CREDA – LexisNexis LITEC, November 2009.
- 27.
See Article L.463-6 of the Commercial Code.
- 28.
Cass. Com. (French Supreme Court), 4 November 2008, Canal 9 P 07-21.275, Bull. IV n° 188.
- 29.
Notice on Competition Commitments, 2nd of March 2009 http://www.autoritedelaconcurrence.fr/doc/cpro_autorite_2mars2009_engagements_antitrust.pdf.
- 30.
Cass com.(French Supreme Court), 19 January 2010 P 08-19.761, Bull. IV n°8.
- 31.
Decision 10-D-36, 17 December 2010, relating to practices applied in the sector of Liquefied Petroleum Gas (LPG) packaged.
- 32.
Rubinstein, A. “An optimal conviction policy for offences that may have been committed by accident”, in Applied game theory, published by S. Brahms, A. Schotter, and G. Schwödiauer. Würzburg: Physica-Verlag, 1979, 406-413, as well as in a different setting, Emons, W. “Escalating sanctions for repeat offenders”, International Review of Law and Economics, 27, 2007, 170–178.
- 33.
See Cons. Conc., dec. n° 06-D-09 of 11 April 2006 relating to practices implemented in the door manufacturing sector, dec. n° 07-D-48 of 18 December 2007 relating to practices implemented in the national and international relocation sector.
- 34.
Cons. conc., dec. n° 12 of 21 May 2008 relating to practices implemented in the plywood production sector.
- 35.
Comment by Alain Ronzano, SMEs and competition law, op. cit., p. 260.
- 36.
Procedural Notice of 2 March 2009 relating to the French leniency programme, point 44, http://www.autoritedelaconcurrence.fr/doc/cpro_autorite_2mars2009_engagements_antitrust.pdf.
- 37.
Article L. 442-6 of the Commercial Code.
- 38.
Cass. com, 8 dec. 2008, Bull IV n° 143.
- 39.
For a recent application, cf. Paris com. Tribunal, 31 Jan 2012, RG 2009061231, conviction of Google France and its parent company for antitrust, RLC no. 31.
- 40.
See the billing rules, Article L. 441-3 of the Commercial Code; “single agreement”, Article 441-7 on resale below cost, Article L. 442-2.
- 41.
For instance: Angers Court of Appeal, 29 V 2007, Ch. Com. Finamo/Minister of the Economy, Juris-Data n° 2007 -342249, Dalloz 2007, Jur. 2433 note M.BANDRAC; Créteil com. Tribunal, 24 X 2006, Minister of the Economy/Système U, RG 2005 F 00025, RLC April-June 2007 87, obs. M. Chagny.
- 42.
Article L. 420-2, 2nd paragraph of the Commercial Code.
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Boudou, M., Charvoz, L., de La Laurencie, JP., Sautel, O., Sélinsky, V. (2014). France. In: Këllezi, P., Kilpatrick, B., Kobel, P. (eds) Antitrust for Small and Middle Size Undertakings and Image Protection from Non-Competitors. LIDC Contributions on Antitrust Law, Intellectual Property and Unfair Competition. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-54000-4_7
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