Ms Emmanuelle van den Broucke

Emmanuelle van den Broucke


Competition & Antitrust

Leniency procedure not contrary to Constitution
France | 02 July 2015

An appeal was filed before the Supreme Court against a Competition Authority decision for an application for a priority preliminary ruling on constitutionality, arguing that the Commercial Code establishes that the leniency procedure is contrary to the rights and freedoms guaranteed by the Constitution. However, the court found that the leniency procedure is part of the authority's sanctioning power and dismissed the appeal.

Competition Authority fines EIG for not respecting 2006 commitments
France | 18 June 2015

Les Indés Radios, an economic interest group (EIG), was the subject of a complaint for having insufficient objectives and transparent admission and leaving conditions. The EIG implemented new commitments but the Competition Authority noted that the EIG later made modifications contrary to its commitments. The authority fined the EIG €300,000 and ordered it to modify its internal regulations.

Trade association can be ordered to pay fine exceeding 5% of income
France | 04 June 2015

The Paris Court of Appeal recently confirmed that a trade association cannot benefit from the 10% turnover cap applicable to fines imposed on companies because a specific €3 million cap is provided for associations and other offenders which are not companies. The decision imposed a more severe fine than that which would have been ordered if the same offence had been committed by a company and not an association.

Information asymmetry can constitute abuse of dominant position
France | 12 March 2015

The Competition Authority has fined Télédiffusion de France €4.2 million for abusing its dominant position by creating information asymmetry with its competitors. The decision confirms that when responding to invitations for bids, economic operators must guard against practices that may be characterised as abuses of dominant position or, as illustrated by other cases, concerted practices.

Exchange between competitors on future pricing is serious concerted practice
France | 19 February 2015

The Competition Authority recently imposed penalties on wallpaper manufacturers for concerted practices in relation to sales to wholesalers. The practices largely concerned shared collections presented in the form of albums of wallpaper samples created for wholesalers, which then made them available to their own customers. As future prices were discussed, the concerted practices were deemed particularly serious.

Personal hygiene and cleaning product manufacturers hit with €1 billion fine
France | 12 February 2015

The French Competition Authority recently imposed one of the biggest fines in its history on a number of personal hygiene and cleaning product manufacturers for their involvement in two price cartels. According to the authority, the cartels – which took the form of secret meetings and telephone calls – sought to promote coordination in the positions that the suppliers adopted in their negotiations with distributors.

National Order of Pharmacists restricts competition on biomedical analysis market
France | 05 February 2015

The National Order of Pharmacists (ONP) was fined €5 million by the European Commission for restricting competition on the biomedical analysis market. ONP challenged the decision by arguing that the penalties were exempt from competition law, as its activities were those of a public authority and thereby justified by the protection of public health. The General Court disagreed.

Competition Authority reminded to take account of economic and legal context
France | 29 January 2015

The Paris Court of Appeal recently overturned a Competition Authority decision which considered marketing agreements between competitors to have no anti-competitive purpose. The claimants were entitled to argue that they had been encouraged to group together in joint marketing structures in order to meet demand which had become national as a result of calls for tenders launched by mass-market retailers.

CEPC: grant of substantial powers solely to buyer contrary to French law
France | 18 December 2014

In a recent opinion, the French Commercial Practices Review Panel examined the general terms and conditions of purchase of a French car manufacturer. It decided that the terms breached the Commercial Code, which prohibits a significant imbalance between the rights and obligations of parties or the threat of such a termination to obtain clearly unfair conditions.

Paris Court of Appeal overturns request that Competition Authority produce case files
France | 11 December 2014

The Paris Court of Appeal recently overturned a request that the Competition Authority produce case files in an exclusionary practice claim. The decision appears to be consistent with the European directive in which national courts can order the Competition Authority to produce case files only when neither of the parties nor any third party can provide that evidence.

SNCF allows travel agencies to compete with its online sales site
France | 04 December 2014

The National Society of French Railways has proposed a number of commitments to the Competition Authority to address concerns that it was favouring its subsidiary online sales site to the detriment of competing travel agencies. These include integration of its subsidiary into the general travel agency system, by subjecting it to a similar remuneration structure as its competitors.

Nespresso: difficult interplay between competition law and IP rights
France | 27 November 2014

Nespresso recently made a number of innovative commitments to the French Competition Authority designed to resolve competition concerns that the latter had expressed. The authority has indicated that these commitments were "the first in the world", so it will be interesting to see whether other companies will follow suit.

ECJ: restriction of competition 'by object' must be strictly interpreted
France | 20 November 2014

The European Court of Justice recently reiterated that restriction of competition 'by object' must be strictly interpreted. By expressly recommending this restrictive interpretation, the court could rekindle debate on the classification of certain practices as restrictions 'by object', in particular vertical practices, which have hitherto been forbidden per se without their effects on the market being demonstrated.

Dominant company cannot disparage its competitor
France | 18 September 2014

The Competition Authority has fined Société Nouvelle des Yaourts de Littée €1.7 million on the grounds that it had abused its dominant position on the market for ultra-fresh products in the French West Indies by making disparaging comments concerning the dairy products of one of its closest competitors, Laiterie de Saint-Malo.

Allegedly unfair behaviour does not justify exclusionary practices
France | 04 September 2014

The Competition Authority has heavily penalised Cegedim, which produces medical information databases, for implementing discriminatory practices against a competitor in the related market for client management software for the pharmaceutical industry. It also reaffirmed the position adopted in previous decisions, according to which the legitimate protection of a company's interests does not justify anti-competitive practices.

Exclusive distribution agreement can confer power of control requiring notification
France | 07 August 2014

The Competition Authority has authorised Orlait to take control of Terra Lacta's ultra-high temperature processing milk business based on a rare application of Point 51 of its Merger Control Guidelines, which provides that in certain cases, contractual relations can confer control over another company. This is the case when a contract with an extremely long term leads to a change in control of a company's management and resources.

Court raps Competition Authority's knuckles and annuls fines against endive producers
France | 31 July 2014

The Paris Court of Appeal has overturned a 2012 Competition Authority decision in relation to endive producers - an event which is sufficiently rare to be eye-catching. The court noted that it had not been conclusively demonstrated that the implicated organisations had overstepped the boundaries of their legal missions within the general framework of the Common Agricultural Policy.

Appeal court takes lenient view of Bang & Olufsen online sales prohibition
France | 10 July 2014

Bang & Olufsen appealed a Competition Authority decision to fine it €900,000 for prohibiting approved distributors from selling the brand's products online. It argued that a total absolute prohibition of online sales protects the network against the passing off from which bricks-and-mortar sales outlets suffer. The Paris Court of Appeal dismissed the appeal – but significantly reduced the fine to €10,000.

Actions for damages: inability to pass on higher prices proves prejudice
France | 03 July 2014

In a recent judgment the Paris Court of Appeal made it easier for victims of anti-competitive practices bringing an action for damages to prove the prejudice that they have suffered. The judges deduced that Doux had not passed additional costs to the distributors and had actually suffered prejudice because of the cartel. It was awarded damages of close to €1.5 million because of the higher prices and for having had to cover them with its own funds.