In French law, the abusive exploitation by a company or a group of companies, of a dominant position in the domestic market, or a substantial part thereof, is prohibited. It is abusive where the practices are intended to or may have the effect of impeding, restricting or distorting the effect of competition on a market that may be a market for products or for services other than that in which the company concerned occupies a dominant position. The abuse may in particular consist in refusals to sell, linked sales or discriminatory sales conditions as well as in the breaking off of established commercial relationships, on the sole ground that the partner refuses to submit to unjustified commercial conditions (art. 420-2, § 1 together with art. 420-1 of the Commercial Code).
In European law, "abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it shall be prohibited as incompatible with the internal market in so far as it may affect trade between Member States. Such abuse may, in particular, consist in: (a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions; (b) limiting production, markets or technical development to the prejudice of consumers; (c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; (d) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts" (art. 102 TFUE).
Resulting from a market force, the abuse of a dominant position is subject to injunctions and penalties imposed by the Competition Authority (art. 464-2 of the Commercial Code). It may also be the subject of proceedings in the civil courts following a claim for unfair competition. The criminal courts may also sentence any private individual who has taken a personal and determining role in the design, organisation or implementation of practices falling within the scope of article L. 420-2 (L.420-6 of the Commercial Code). A regime applicable by way of exception is nevertheless provided for at art. L. 420-4 of the Commercial Code, which applies in particular in the event of abuse of a dominant position.
- on the concept of dominant position:
- the creation of a dominant position is not wrongful in itself:
- only a significant breach of the competition rules may characterise an anti-competitive practice:
- on the ability to sanction abuses of dominance for an act committed by a dominant undertaking on a market distinct from the dominated market: