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Unfair competition, anti-competitive practices, restrictive competition practices, etc.

Unfair competition, anti-competitive practice, restrictive practice of competition
PROCAP DETECTIVE TOULON - Unfair competition, anti-competitive practice, restrictive competition practice: what difference(s)?
Unfair competition, anti-competitive practices, restrictive competition practices: what difference(s)?

Often amalgamated due to a semantic proximity which characterizes them and a material affinity to which they apply (domain or competition law), “unfair competition”, “anti-competitive practices” and “competitive practices restrictive of competition” do not designate the same situations and are not based either (at least not completely) on the same legal foundations. Their object, like their purpose, does not tend to protect the same rights.

If the first (unfair competition) aims to sanction particular behavior of one company towards another, constituting a fault resulting from an abuse of the right to undertake, which presupposes a certain loyalty between competitors , the second (anti-competitive practice) is based on a much broader object and tends to sanction an attack on the general principle of freedom of trade, and its corollary, that of freedom of competition. As for restrictive competition practices, even if they share the same legal basis with anti-competitive practices, they are distinguished by the intended purpose, which aims more to prevent the imbalances that may arise in commercial partnerships.

Unfair competition, anti-competitive practices and restrictive competition practices: what are the differences?

Unfair competition

Unfair competition is not strictly speaking a concept appearing or provided for as such in the legal corpus, but a jurisprudential notion resulting from the transposition to the commercial field of “tort liability”. Unfair competition refers to abusive practices, behaviors or actions of one company towards another, necessarily in competition, causing harm and contrary to the spirit of loyalty that should govern the relationship between competing economic actors. It is most often an action committed by a competitor harming another company belonging to the same sector of activity (competitive link).

Although related to the field of competition law, the legal basis of unfair competition comes from civil law and is based on “tort liability”. Unfair competition is essentially based on article 1240 of the Civil Code which states: "Any act whatsoever of man, which causes damage to another, obliges the person through whose fault it happened to repair it." It exposes its author to damages.

Unfair competition necessarily presupposes three conditions, which are necessarily cumulative:

  • A mistake made

  • A harm

  • A causal link between the fault and the damage

Over time, case law has identified a set of actions constituting unfair competition. Unfair practices are thus described as: "denigration", "disorganization", imitation", "confusion", "parasitism", "non-compliance with non-competition clauses", "complicity in non-competition". -compliance with non-competition clauses", "illicit poaching of employees", "misappropriation of customers"... (See table below)

Unfair competition action is, in principle, within the jurisdiction of the commercial court of the competitor's headquarters. But unfair competition being a qualification covering protean situations, this rule of jurisdiction has multiple exceptions. Indeed, the plaintiff can also choose the commercial jurisdiction of the place where the acts were committed, or the jurisdiction in which the damage was suffered. Likewise, if the unfair competition action is directed against a non-trader (independent natural person, liberal professional), in this case it is the Judicial Court which has full jurisdiction. If the action is brought against a former employee bound by a non-competition clause, the action must be brought before the Industrial Tribunal. Likewise, in the case of complicity in non-compliance with a non-competition clause, the action for unfair competition first involves going before the Industrial Tribunal to resolve the dispute against the offending ex-employee, before to authorize the request of commercial jurisdiction against the complicit competitor. Finally, if the acts of unfair competition reported are accompanied by an infringement of a private right relating to intellectual property (e.g. counterfeiting), it is the Specialized Judicial Court (Correctional Court) which has jurisdiction. But let us remember, in this specific case, that the action for unfair competition against the infringing competitor must necessarily be based on facts distinct from that of the infringement. The jurisdictional jurisdiction for unfair competition actions is therefore multiple and recognizes numerous exceptions to the rule of principle.

Anti-competitive practices

Unlike unfair competition, which presupposes a direct fault of one company vis-à-vis another, anti-competitive practices designate a more general obstacle to the normal course of competition. Here, an entire sector is affected, or the normal course of a market is distorted.

Anti-competitive practices are specifically referred to in article 420-1 et seq. of the Commercial Code . They are defined as any behavior, concerted action, conventions, express or tacit agreements or coalitions, emanating from one or more companies, which have the effect of “preventing, restricting or distorting competition on a market ”, in other words which alter, hinder or annihilate the normal play of competition.

Anti-competitive practices are:

  • Agreements aimed at limiting access to the market and the free exercise of competition;

  • Artificially distorting price setting;

  • Monopolistic agreements intended to limit or control production circuits, investment and outlets;

  • Abusive exploitation of a dominant position;

  • Excessively low price offers and practices.

A company is not a direct victim of anti-competitive practices, but indirectly: all local, regional or sectoral competition is impaired. Anti-competitive practices constitute attacks on the general principle of freedom of trade, by distorting its normal course. Here, it is the normal game of competition that is affected, or distorted, and not directly a particular company. The aim of this qualification is to promote balance in the normal course of trade.

The typical example of an anti-competitive practice is price collusion: several economic actors agree on the fixing of the price. Such an agreement can be detrimental both for other companies (sectoral damage) and for the end consumer (agreement on a price increase). Another example of anti-competitive practice: several companies agree to agreements or tacitly collude with the aim of creating a monopoly on a given market, which annihilates all possible competition.

With regard to anti-competitive practices, it is the General Directorate for Competition, Consumer Affairs and Fraud Control (DGCCRF) and the Competition Authority (ADLC) which have full powers regarding instructions. , regulation or prosecution.

Practices restricting competition

Restrictive competition practices are specific to French law. They are set out in articles L442-1 et seq. of the Commercial Code and aim to regulate the relationship between commercial partners as well as to prevent imbalances that could arise from abusive, monopolistic or dominant practices between partner economic actors.

The following qualify as restrictive competition practices:

  • The fact, for a commercial partner, of obtaining disproportionate or unrequited advantages. This may, for example, involve billing for a fictitious service or one that is clearly disproportionate to the service; or even the fact of charging "in addition" to a normal contractual obligation already provided for by the parties and included (or included) in the contract.

  • The significant imbalance in the rights and obligations of the parties (this is a transposition into commercial law of the “unfair clause” present in consumer law).

  • The fact of obtaining abusively or under threat of breach of contract the imposition of prices and conditions of sale on the commercial partner, or of taking advantage of a dominant position to impose advantageous prices and conditions under threat of breach of contract.

  • The act of abruptly terminating, including partially, an established commercial relationship without notice and without respecting usual commercial practices (terminations due to non-performance or force majeure are excluded).

  • The fact, for a distributor who is bound by an exclusive or selective distribution agreement, to resell outside the network.

Anti-competitive practices and practices restrictive of competition are not necessarily exclusive, but can be combined. A company may well be subject to a conviction for anti-competitive practices, in addition to repression for restrictive competition practices.


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