France

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239

Chapter VII

FRANCE

A. The Sources and Basics of Antitrust Law in France

1. Basic Statutory Scheme

In France, as a member state of the European Union, competition law

exists at both domestic French level and the quasi-federal EU level. EU

competition law applies whenever an agreement or practice affects trade

between EU Member States, and must be applied not only by the

European Commission but also by the French authorities1 By contrast, if

the agreement or practice only affects the French territory, French

domestic competition law applies.2 EU competition law is examined in

detail in the EU chapter and is not considered further in this chapter.

French domestic competition law is not simply a mirror image of EU

competition law. Freedom of commerce, the cornerstone of French

competition law, was recognized by the Le Chapelier Law3 just after the

French Revolution, and was reasserted in 1973 by the Royer Law.4 Two

ordinances published in 1945 organized the regulation of competition

and prices.5 However, French competition law was effectively recast by

Ordinance No. 86-1243 of December 1, 1986, on freedom of prices and

competition (1986 Ordinance). 6 The 1986 Ordinance significantly

changed French competition law by ending state control over prices and

1. Council Regulation 1/2003 of 16 December 2002, on the Implementation

of the Rules on Competition Laid Down in Articles 81 and 82 of the

Treaty 2003 OJ (L 1) 1 (EC) [hereinafter Regulation 1/2003].

2. Id. art 3(1).

3. Law (Le chapelier relative aux assemblées d’ouvriers et d’artisans de

même état et profession) of June 14, 1791, Jounal Officiel de la

Republique Française (hereinafter J.O.) [Official Gazette of France]

August 20, 1944, p. 25, art. 7.

4. Law No. 73-1193 of Dec. 27, 1973, J.O., Dec. 30, 1973, p. 1 4139.

5. Ordinance No. 45-1483 of June 30, 1945, J.O., July 8, 1945, p. 4150 (on

prices); Ordinance No. 45-1484 of June 30, 1945, J.O., July 8, 1945, p.

4156 (on the establishment, prosection and punishment of violations of

economic legislation).

6. See Ordinance No. 86-1243 of Dec. 1, 1986, J.O., Dec. 9,1986, p. 14773.

240 Antitrust Issues in International IP Licensing Transactions

establishing the principles of freedom to set prices and market

transparency. It also introduced the prohibition of abuse of economic

dependency.7 This specific notion does not exist in EU competition law.

In 2001, the New Economic Regulations Act (NER) was passed to

reform French competition law as set forth in the 1986 Ordinance.8 Not

only were the provisions of the 1986 Ordinance concerning competition

law included in the New Commercial Code (Book IV, Articles L410-1 to

Article L470-8), but the NER more generally attempted to improve the

ethics of commercial practices and to introduce new tools to more

effectively counteract anticompetitive practices.

French commercial and competition law was also modified by a

2004 Ordinance9 intended to put the French legislation in line with the

new EU framework of Council Regulation (EC) No 1/2003.10

In 2005, the Dutreil Law11 modified French legislation mostly on

abusive and discriminatory practices, as defined in Article L442-6 of the

Commercial Code, in order to improve the power of SMEs (small and

medium-sized enterprises) against powerful distributors. The Dutreil

law also created a new criterion for the appraisal of mergers namely the

“creation or safe-keeping of jobs.”12

Most recently, French competition law underwent a far-reaching

reform in 2008 pursuant to the Law for the Modernization of the

Economy 13 and the Ordinance on the Modernization of Competition

Regulation. 14 A single and strengthened competition authority was

created and endowed with greater powers than the two former

competition authorities, the Ministry of Economy (which used to act

through the French General Directorate for Fair Trading, Consumer

Affairs and Fraud Control—DGCCRF) and the Conseil de la

Concurrence. Since March 2, 2009, the new Autorité de la Concurrence

deals with merger control and is also the primary investigative agency in

relation to anticompetitive practices.

7. Id.

8. Law No. 2001-420 of May 15, 2001, J.O., May 16, 2001, p. 7776.

9. Ordinance No. 2004-1173 of Nov. 4, 2004, J.O., Nov. 5, 2004, p. 18689

(adapting certain provisions of the French Commercial Code to European

antitrust law).

10. Regulation 1/2003, supra note 1.

11. Law No. 2005-882 of Aug. 2, 2005, J.O., Aug. 3, 2005, p. 12639, (for

Small and Medium Enterprises, or SMEs).

12. Id. (amending CODE DECOMMERCE [C. COM.] art. L430-6).

13. Law No. 2008-776 of Aug. 4, 2008, J.O., Aug. 5, 200 8, p. 12471.

14. Ordinance No. 2008-1161 of Nov. 13, 2008, J.O., Nov. 14, 2008.