Abuse of Economic Dependence - The Centre for European Policy ...

32 A Gap in the Enforcement of Article 82
Competition law in France sanctions abuses of economic dependence, no
prior determination of dominance being necessary. Abuses of economic
dependence can include: refusal to sell, bundled sales, discrimination,
certain types of bundled purchase agreements, and, most often, abrupt
cessation or alteration of commercial relationships.
The French Competition Council has considered that:
[S]ituations of dependence arise within bilateral relationships between
two firms and must therefore be assessed on a case by case basis, and not
a general basis for a profession as a whole. 47
Four cumulative criteria are used to assess dependence. In the case of a
distributor alleging to be dependent of his supplier, these criteria will be: the
reputation of the supplier’s product; the supplier’s market share; the
supplier’s market share in his distributor’s turnover; and the absence of any
alternative solution for the distributor.
As an illustration, the Competition Council reviewed the complaint 48
filed by the company Daniel Grenin, specializing in road-hauling and the
storage of goods, against two of its customers (IUP/SM). 49
Two of its customers had decided to cease using Daniel Grenin’s goods
storage services, informed it of this decision in December 1999, and cut all
business ties with it in January 2000. At the same time, the companies in
question had stopped using Daniel Grenin’s road-hauling services but without
informing it, even though it had already given them a significant rate
cut.
The Competition Council indicated that the state of economic dependence
stems from an aggregation of cumulative criteria:
• notoriety of the supplier’s brand;
• importance of the supplier’s market share;
• significance of the supplier’s market share in the sales figures of the
company in question, provided this market share is not the result of a
deliberate choice by the corporate customer;
enforced on a per se basis, regardless of their impact on competition: their objective is to
protect the fairness of commercial relationships. As such, the restrictive trade practices fall
within the jurisdiction of regular courts and are not enforced by the French Competition
Council, unless they also constitute an abuse of economic dependence as defined in Article L
420-2.
47 Decision 03-D-42 of August 18, 2003 (translation). For additional cases dealing with
abuse of economic dependence see further: L Luce Nollet, Y Utzschneider, ‘France: Award of
Radio Frequency Licences not subject to Jurisdiction of Competition Authority’ [2002] ECLR
N26-27, France Telecom SA v Numericable SNC [2001] ECC 2.
48 L Nollet, ‘France: Anti-Competitive Practices’ [2003] 24(7) ECLR N116-117.
49 All subsidiaries of the Usinor Groupage.