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.
In 2012 the Competition Authority penalised 10 endive producer organisations and seven representative organisations for a series of practices. At the time, to find the existence of an anti-competitive agreement involving those producers and organisations - and more specifically, a single, complex and continuous infringement, the authority had identified an elaborate organised system whose sole objective was to control the prices of endives sold by the producers to wholesalers and distributors. According to the authority, these practices consisted of:
- regularly circulating minimum price instructions for each type of endive;
- issuing guidelines about promotional offers;
- managing the volume of endives put on sale; and
- exchanging information about the prices utilised by the producers.
The court of appeal 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.
The court also recalled that to find the existence of a complex and continuous infringement, it is necessary to verify that the practices concerned are sufficiently complementary: they must contribute to achieving all of the anti-competitive effects within the framework of a general plan with a single objective.
However, in this case one of the essential objectives of the specific rules applying to the agricultural sector was to protect producers' income. In addition, regular contact between endive producers and their professional organisations and exchanges of information could not constitute a common modus operandi, as these exchanges were necessarily implied by the professional organisations' missions.
Consequently, according to the court, the pursuit of a single anti-competitive objective throughout the duration of the reported practices had not been demonstrated.
Moreover, the court found that the criterion of the continuity of the practices was not met, due in particular to the existence of "empty periods". In addition, continuity could not be illustrated exclusively by the circulation of minutes of meetings held at regular intervals, insofar as most of the petitioners' activities did not pursue an anti-competitive objective. The authority could not then rule that there was a common intent to implement a continuous general plan.
The court ultimately decided that no single complex and continuous infringement had been established, and therefore annulled the €3.9 million in fines imposed on the endive producer organisations and their professional organisations.
The decision confirms the Paris Court of Appeal's pragmatism, as it recognised not only the problems and rules specific to the agricultural sector, but also the pressure on prices prevalent in the sector, particularly from supermarket retailer customers.
For further information on this topic please contact Emmanuelle van den Broucke or Sara Pomar at Dentons by telephone (+33 1 4268 4800), fax (+33 1 4268 1545) or email ([email protected] or [email protected]). The Dentons website can be accessed at www.dentons.com.
