France, 1986: Difference between revisions

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'''This page is under construction. Please check back in mid-July, 2008.'''
'''Score = 19 '''


1986 saw the passage of a major competition law, Ordinance No. 86-1243 of December 1, 1986.<ref>The text of the statute is available in ''French Law, Constitution and Selective Legislation,'' George A. Bermann & Vivian G. Curran, 1998, section 5 (last updated, 1994). The edition notes the legislative changes, and the 1994 changes do not affect the 1986 scoring.</ref>  This replaced Ordinnance No. 45-1243 of June 30, 1945. 1986 also saw the repeal of Penal Code Art. 419 (after 176 years)<ref>in Provision 57 of the statute</ref>.
1986 saw the passage of a major competition law, Ordinance No. 86-1243 of December 1, 1986.<ref>The text of the statute is available in ''French Law, Constitution and Selective Legislation,'' George A. Bermann & Vivian G. Curran, 1998, section 5 (last updated, 1994). The edition notes the legislative changes from the original 1986 statute.</ref>  This replaced Ordinnance No. 45-1243 of June 30, 1945 and its modifications, as well as Law No. 77-806 of 19 July 1977 (the old Merger Reg). 1986 also saw the repeal of Penal Code Art. 419 (after 176 years!)<ref>in Provision 57 of the statute</ref>.


''Governed by:'' Ordinance no. 86-1243 of 1 December 1986.
''Governed by:'' Ordinance no. 86-1243 of 1 December 1986.<ref>the full French text of the 1986 statute is available from Legifrance, starting at http://www.legifrance.gouv.fr/jopdf/common/jo_pdf.jsp?numJO=0&dateJO=19861209&pageDebut=14773&pageFin=&pageCourante=14773</ref>


{| class="wikitable"
{| class="wikitable"
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| Scope
| Scope
| Extraterritoriality
| Extraterritoriality
| 1
| 0
| The Ordinance applies to anything having a competition effect on the French market.<ref>CA Paris, 1ère Ch. sect. conc.,  15 September 1993, Sté. Brassler et Ass.: BOCCRF 8 April 1994.</ref>
|


|- class="categorydivision"
|- class="categorydivision"
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| Fines
| Fines
| 1
| 1
| Articles 13 and 14 provide for monetary sanctions for certain offenses.
| Articles 13 and 17 provide for fines for competition violations.


|-
|-
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| Prison Sentences
| Prison Sentences
| 1
| 1
| Article 17 provides prison sentences for certain competition offenses.
| Article 17 provides for prison sentences for key players in fraudulent competition violations.  


|-
|-
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| Divestitures
| Divestitures
| 1
| 1
| Art. 42 allows the Minister of the Economy to undo certain mergers.  
| Art. 42 of the statute provides for divestitures of anticompetitive mergers.  




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| 3rd Party Initiation
| 3rd Party Initiation
| 1
| 1
| Any party who has an interest can commence an action before the courts by serving an assignation.
| Article 11 allows some third parties to initiate investigations.  


|-
|-
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| Remedies Available to 3rd Parties
| Remedies Available to 3rd Parties
| 1
| 1
| The French Code of Criminal Procedure allows victims of crimes to recover in tort suits.  
| Article 36 establishes tort liability in limited circumstances, including discriminatory pricing.  
|-
|-
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|- class="categorydivision"
|- class="categorydivision"
| Merger Notification
| Merger Notification
| Voluntary
|Voluntary  
| 1
| 1
|  
| Art. 38 states that merging companies may notify the government of the merger.
|-
|-
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| Post-merger
| Post-merger
| 1
| 1
|  
| Article 38 says that the government may be notified of a merger up to 3 months after the merger.
|- class="categorydivision"
|- class="categorydivision"
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| Dominance
| Dominance
| 1
| 1
| Article 38 requires that the companies’ market shares are examined when deciding whether the merger needs review.
| Art. 38 states that one criteria for merger notification is creation of a dominant position.
|-
|-
|  
|  
| Restriction of Competition
| Restriction of Competition
| 0
| 1
|  
| Art. 38 states that restriction of competition is a factor in merger consideration.
|-
|-
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| Public Interest (Pro D)
| Public Interest (Pro D)
| 1
| 1
| Art. 41 makes an exception for "National Champion" firms.
| Art. 40 allows for economic progress from the merger to count in the merging companies' favor.  
|-
|-
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|  
|  
| Other
| Other
| 0
| 1
|  
| Art. 41 allows for consideration of "the competitiveness of the enterprises concerned from the standpoint of international competition" in merger consideration.
|-
|-
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| 0
| 0
|  
|  
|- class="categorydivision"
|- class="categorydivision"
| Dominance
| Dominance
| Limits Access
| Limits access
| 0
| 0
|  
|  
Line 122: Line 123:
| Abusive Acts
| Abusive Acts
| 1
| 1
| Article 8 prohibits abusive exploitation by a dominant enterprise.
| Art. 8 prohibits abuse of a dominant position.  


|-
|-
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| Price Setting
| Price Setting
| 1
| 1
| Article 8 applies the restriction on price setting as established in Article 7 to dominant companies.
| Article 8 incorporates part of Art. 7, which prohibits price setting.  


|-
|-
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| Discriminatory Pricing
| Discriminatory Pricing
| 1
| 1
| Article 8 bans discriminatory pricing by dominant companies.
| Art. 8 prohibits discriminatory pricing.  
|-
|-
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| Resale Price Maintenance
| Resale Price Maintenance
| 1
| 1
| Article 32 bans RPM when the distributor sets a minimum price (but not for setting a max price)
| Art. 34 bans resale price maintenance.
|-
|-
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| Efficiency Defense
| Efficiency Defense
| 1
| 1
| Article 10(2) offers a defense for showing that the effect of the acts if they ensure economic progress.
| Art. 10.2 allows a limited efficiency defense.  
|- class="categorydivision"
|- class="categorydivision"
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| Price Fixing
| Price Fixing
| 1
| 1
| Article 7(2) prohibits price fixing.
| Art. 7 bans price fixing.  
|-
|-
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| Tying
| Tying
| 1
| 1
| Article 8 prohibits tying arrangements.
| Art. 8 bans tying.  
 
|-
|-
|  
|  
| Market Division
| Market Division
| 1
| 1
| Article 7(4) prohibits allocating markets or sources of supply.
| Art. 7 bans market division.  
|-
|-
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| Output Restraint
| Output Restraint
| 1
| 1
| Article 7(3) prohibits limiting or controlling production.
| Art. 7.3 bans output restraint.
|-
|-
|  
|  
| Market Sharing
| Market Sharing
| 1
|  
| Article 7(4) prohibits allocating markets or sources of supply.
|  
|-
|-
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| Eliminating Competitors
| Eliminating Competitors
| 1
| 1
| Article 7(1) prohibits agreements that limits access to the market or free exercise of competition by other enterprises.
| Art. 7 prohibits agreements which impede competition.  
|-
|-
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|  
|  
| Supply Refusal
| Supply Refusal
| 1
|1
| Article 8 prohibits refusing to sell.
| Art. 8 prohibits supply refusal by cartels.  
 
|-
|-
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| Efficiency Defense
| Efficiency Defense
| 1
| 1
| Article 10 exempts for Article 7 and 8 agreements that have the effect of ensuring economic progress.
| Art. 10.2 provides for a limited efficiency defense.  
|}
|}

Latest revision as of 16:24, 10 July 2008

Score = 19

1986 saw the passage of a major competition law, Ordinance No. 86-1243 of December 1, 1986.[1] This replaced Ordinnance No. 45-1243 of June 30, 1945 and its modifications, as well as Law No. 77-806 of 19 July 1977 (the old Merger Reg). 1986 also saw the repeal of Penal Code Art. 419 (after 176 years!)[2].

Governed by: Ordinance no. 86-1243 of 1 December 1986.[3]

Category Subcategory Score Comment
Scope Extraterritoriality 0
Remedies Fines 1 Articles 13 and 17 provide for fines for competition violations.
Prison Sentences 1 Article 17 provides for prison sentences for key players in fraudulent competition violations.
Divestitures 1 Art. 42 of the statute provides for divestitures of anticompetitive mergers.


Private Enforcement 3rd Party Initiation 1 Article 11 allows some third parties to initiate investigations.
Remedies Available to 3rd Parties 1 Article 36 establishes tort liability in limited circumstances, including discriminatory pricing.
3rd Party Rights in Proceedings 0
Merger Notification Voluntary 1 Art. 38 states that merging companies may notify the government of the merger.
Mandatory 0
Pre-merger 0
Post-merger 1 Article 38 says that the government may be notified of a merger up to 3 months after the merger.
Merger Assessment Dominance 1 Art. 38 states that one criteria for merger notification is creation of a dominant position.
Restriction of Competition 1 Art. 38 states that restriction of competition is a factor in merger consideration.
Public Interest (Pro D) 1 Art. 40 allows for economic progress from the merger to count in the merging companies' favor.
Public Interest (Pro Authority) 0
Other 1 Art. 41 allows for consideration of "the competitiveness of the enterprises concerned from the standpoint of international competition" in merger consideration.
Efficiency 0


Dominance Limits access 0
Abusive Acts 1 Art. 8 prohibits abuse of a dominant position.
Price Setting 1 Article 8 incorporates part of Art. 7, which prohibits price setting.
Discriminatory Pricing 1 Art. 8 prohibits discriminatory pricing.
Resale Price Maintenance 1 Art. 34 bans resale price maintenance.
Obstacles to Entry 0
Efficiency Defense 1 Art. 10.2 allows a limited efficiency defense.
Restrictive Trade Practices Price Fixing 1 Art. 7 bans price fixing.
Tying 1 Art. 8 bans tying.
Market Division 1 Art. 7 bans market division.
Output Restraint 1 Art. 7.3 bans output restraint.
Market Sharing
Eliminating Competitors 1 Art. 7 prohibits agreements which impede competition.
Collusive Tendering/Bid-Rigging 0
Supply Refusal 1 Art. 8 prohibits supply refusal by cartels.


Efficiency Defense 1 Art. 10.2 provides for a limited efficiency defense.

References

  1. ↑ The text of the statute is available in French Law, Constitution and Selective Legislation, George A. Bermann & Vivian G. Curran, 1998, section 5 (last updated, 1994). The edition notes the legislative changes from the original 1986 statute.
  2. ↑ in Provision 57 of the statute
  3. ↑ the full French text of the 1986 statute is available from Legifrance, starting at http://www.legifrance.gouv.fr/jopdf/common/jo_pdf.jsp?numJO=0&dateJO=19861209&pageDebut=14773&pageFin=&pageCourante=14773
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