UNFAIR COMMERCIAL PRACTICES
A particular feature of French law is that it strictly prohibits certain commercial practices, such as:
- Imposing rights and obligations that create significant imbalance between contracting parties
- Obtaining an undue advantage that is not exchanged for consideration or that is out of proportion to the service rendered
- Suddenly terminating or threatening to terminate a long-established business relationship
- Imposing payment terms on a trading partner in breach of the statutory maximum (net 45 end of the month or net 60)
- Declining or returning merchandise, or automatically deducting penalties from the invoiced amount.
We systematically take these requirements into account when assisting your company with the drafting, review, negotiation, and implementation of your commercial agreements.
Well-advised companies have become very assertive in using competition law to protect and promote their business activities, with an inventory of solutions to choose from:
Competition claims – filing a complaint and building a case
We help your company take action to put a stop to anticompetitive practices by competitors or suppliers as quickly as possible.
Inspection by European competition authorities or French enforcement agencies (DGCCRF/DIRECCTE)
We help your company prepare for administrative inspection, well ahead of the critical moment, in order to best protect your rights and interests. The goal in such cases is to minimize seizures of unrelated documents, limit the risk of employees providing self-incriminating information, and avoid any behavior for which your company might be fined because inspectors interpret it as obstruction.
Analysis and approval of your pricing strategy
Although companies are free to set their prices as a general principle, competition authorities may take an interest in price levels in certain market configurations, i.e. where one company holds a dominant position. If so, prices must not be “excessive”, “predatory”, or result in tying. As these concepts are highly subject to change, your proposed pricing strategy should be very thoroughly examined before any roll-out or implementation. In some cases this may also require assistance from the expert economists with whom we are accustomed to working.
We help your company:
- identify which competition authorities should be notified of a merger before the deal can be closed
- manage notification procedures, including outside of France, to quickly obtain clearance
- head off related risks, especially those involving the exchange of sensitive business information and gun jumping
- challenge a potential merger or contractual partnership and provide your company with legal representation when doing so.
With the enactment of the Sapin II anticorruption law in France, companies seeking to maintain or enhance their market position and realize their full value must genuinely come to grips with competition law compliance. Our approach focuses on:
- Training sessions for top management and sales teams on how to comply with competition rules. Training is tailored to the specific features of the company’s business sector and its market positioning
- Incorporating competition issues into existing compliance programs and policies, or if none yet exist, setting up a dedicated competition compliance program
- Conducting audits, at the company’s request, to make sure employees have been adequately briefed on issues of competition law.
A distribution network’s value and performance depend on certain precautions being taken. In practice this means:
- Setting up or modernizing existing distribution networks or commercial arrangements
- Preventing and penalizing unfair practices (free riding) and IP infringements
- Managing the negotiation or litigation of your contractual disputes – especially those involving a sudden termination of established business relationships and/or a breach of contract – whether your company is the party at fault or the victim.
A company that wants to secure lasting growth and profitability must make sure that its commercial practices are not deceptive (e.g. misleading or false advertising) or unreasonably aggressive (e.g. bundling). In some cases there is an extremely fine line between what is allowed and what is problematic.
We can advise you on how to avoid unlawful conduct, and defend your interests if an unhappy consumer files a complaint with enforcement agencies or the courts.