Your company is the victim of an abuse of a dominant position

A supplier imposes unfair trading conditions on you. A competitor uses predatory pricing to drive you out of the market. A dominant operator refuses to give you access to essential infrastructure, or applies a price squeeze that makes your business unviable. These are all forms of abuse of a dominant position punishable under competition law, both in France and in the European Union.

A company in a dominant position does not break the law simply because of its economic power. What the law prohibits is the abusive exploitation of this position - abusive behaviour that distorts competition by means unrelated to competition on the merits. The Court of Justice of the European Union laid down this principle in the Hoffmann-La Roche ruling: abuse is an objective concept, independent of intent. The Court of Cassation applies the same reasoning in French law.

Two main categories of practices are targeted. The abuse of exclusion seek to eliminate a competitor or prevent new players from entering the market: predatory pricing, abusive exclusivity clauses, refusal to sell, tied sales, price squeeze. The abuse of exploitation take unfair advantage of a dominant position to the detriment of commercial partners or consumers: excessive prices, discriminatory conditions, additional services imposed unrelated to the purpose of the contract. The distinction between unfair competition and abuse of a dominant position lies in the source of market power: unfair competition law punishes misconduct between competitors irrespective of any dominance; Article L. 420-2 applies only to undertakings holding a dominant position on a relevant market.

Article L. 420-2 of the French Commercial Code

The abuse by an undertaking or group of undertakings of a dominant position within the internal market or in a substantial part of it is prohibited. Such abuse may consist in particular in refusal to sell, in tied sales or in discriminatory conditions of sale, as well as in the termination of established commercial relations on the sole ground that the partner refuses to submit to unjustified commercial conditions.

Our firm handles

  • Legal classification of the anti-competitive practice under Article L. 420-2 of the French Commercial Code and Article 102 of the TFEU
  • Delimitation of the relevant market and analysis of the dominant position of the respondent company, on the basis of market shares, barriers to entry and the economic power of the group
  • Putting together the evidence file: factual elements, economic data and contractual documents
  • Referral to the Competition Authority or bringing an action for damages before the civil or commercial courts
  • Monitoring the proceedings and defending your interests at every stage of the investigation

In terms of penalties, the administrative and criminal aspects are combined. The Autorité de la concurrence can impose fines of up to 10 % of worldwide sales before tax. The European Commission has the same power for cases affecting the Union's internal market. In terms of criminal law, Article L. 420-6 of the French Commercial Code provides for penalties to be imposed on any natural person who has played a personal and decisive role in the implementation of anti-competitive practices: four years' imprisonment and a fine of €75,000.

You have been charged with abuse of a dominant position

The Autorité de la concurrence (French competition authority) notifies you of grievances, or a competitor brings a civil liability action against you. The financial stakes are high and the procedure requires a rapid, structured response based on business and commercial law.

We intervene as soon as the grievances are notified to organise your defence. The strategy depends on the context: contesting the existence of a dominant position on the relevant market, demonstrating that the practices are part of normal competition on the merits, or negotiating commitments as part of a settlement procedure before the Autorité.

Our areas of defence

  • Critical analysis of the definition of the relevant market used by the rapporteur, product and geographic dimensions
  • Challenging dominance criteria: market share, barriers to entry, buyer countervailing power
  • Demonstration that the practices complained of constitute normal competition, discounts justified by efficiency gains or objective conditions
  • Preparing for AMF investigations, including inspections and seizures
  • Drafting observations in response to the statement of objections and representation before the College of the Competition Authority
  • Appeal to the Paris Court of Appeal if the decision needs to be challenged

Anticipating competitive risks

A company whose market share exceeds 40 % enters a zone of vigilance. Beyond 50 %, European case law presumes a dominant position. At this level of market power, common commercial practices - conditional discounts, exclusivities, differentiated pricing policies - can be requalified as abuses. The risk is all the greater in concentrated or regulated sectors, where the Competition Authority exercises heightened surveillance.

Our firm helps companies in dominant positions to structure their commercial practices. The aim is to reconcile economic performance with compliance with French competition law, without hindering business development.

Our support in prevention

  • Compliance audit of your commercial practices with regard to French and European competition law
  • Review of your distribution contracts, general terms and conditions of sale and discount policies
  • Analysis of your relationships with your commercial partners to identify the risks of reclassification as abuse of exploitation or abuse of economic dependence
  • Training your teams in competitive compliance reflexes and the commercial law applicable to your sector
  • Strategic advice upstream of sensitive commercial decisions: new product launches, pricing policies, exclusivity agreements, etc.