Abstract
A definition of digital platforms was introduced in French law in 2015 and subsequently modified in 2016. It reads as follows:
Is qualified as operator of on-line platform, any natural or legal entity offering, on a professional basis, whether against remuneration or not, an online service of communication to the public relying on:
1 ° The classification or the referencing, by means of computing algorithms, of contents, of goods or services offered or put online by third parties;
2 ° Or the connection between several parties with the aim of the sale of a good, the supply of a service or an exchange or a sharing of a content, a good or a service.
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Notes
- 1.
Law 2015-990 of 6 August 2015 for growth, activity and equal economic opportunities (the ‘Macron Law’).
- 2.
Law no 2016-132 of 7 October 2016 for a digital Republic.
- 3.
Article L. 111-7 of the Consumer Code.
- 4.
Paris Court of Appeal, Pole 3 Chamber 1, 2 February 2016, RG no 15/01542, eNova Santé v Caudalie; Paris Court of Appeal, Pole 5 Chamber 4, 25 May 2016, RG no 14/03918, France Télévisions v Valentina Colombo, Coty France and Marvale LLC.
- 5.
Competition Authority, Decision No 15-D-06 of 21 April 2015 concerning practices implemented in the online hotel reservation sector (Decision upon which relies Paris Court of Appeal, Pole 5 Chamber 7, 8 October 2015, RG no 2015/11953 Synhorcat, Fagiht v. Booking.com B.V., Booking.com France SAS and Booking.com Customer Service France SAS); Decision No 14-D-18 of 28 November 2014 regarding practices implemented in the event-driven online sales sector (Decision upon which relies Paris Court of Appeal, Pole 5 Chamber 7, 12 May 2016, RG no 2015/00301, Brandalley v Showroomprivé.com, Vente-Privée.com, Autorité de la concurrence, Ministre de l’économie, de l’industrie et du numérique); Decision No 14-D-11 of 2 October 2014 regarding practices implemented in the train ticket distribution sector; Decision No 14-D-04 of 25 February 2014 regarding practices implemented in the online horserace betting sector; Decision No 09-D-06 of 5 February 2009 regarding practices implemented by SNCF and Expedia Inc. in the online travel sales sector (Decision upon which relies Paris Court of Appeal, Pole 5 Chamber 7, 23 February 2010, RG no 2009/05544, Expedia Inc., Karavel v SNCF, Voyages-SNCF.com, l’Agence Voyages-SNCF.com, VFE Commerce, iDTGV and Lastminute); Decision No 07-D-07 of 8 March 2007 regarding practices implemented in the sector of cosmetics and personal hygiene products.
- 6.
Competition Authority, Decision No 16-DCC-111 of 27 July 2016 on the acquisition of sole control of Darty by Fnac; Decision No 11-DCC-87 of 10 June 2011 on the acquisition of sole control of Media Concorde SNC by High Tech Multicanal Group.
- 7.
Competition Council, Decision No 07-D-07, 8 March 2007 relative to practices implemented in the sector of cosmetic and personal hygiene products.
- 8.
CJEU, case C-439/09, Pierre Fabre Dermo-Cosmétique SAS v Président de l’Autorité and Ministre de l’Économie, de l’Industrie et de l’Emploi, ECLI:EU:C:2011:649.
- 9.
Competition Authority, Opinion No 12-A-20 of 18 September 2012 regarding the competitive functioning of e-commerce.
- 10.
Competition Authority, Decision No 14-D-07 of 23 July 2014 relating to practices implemented in the sector of brown products distribution, in particular televisions; No 15-D-11 of 24 June 2015 relating to a request of interim measures concerning practices implemented in the sector of brown products distribution, in particular televisions.
- 11.
Competition Authority, Decision No 15-D-11 of 24 June 2015 relating to a request of interim measures concerning practices implemented in the sector of brown products distribution, in particular televisions, §8.
- 12.
Competition Council, Decision No 07-D-07 of 8 March 2007 regarding practices implemented in the field of personal care and cosmetic products distribution.
- 13.
Paris Commercial Court, President, Ordinance of 31 December 2014, RG no 2014060579, Caudalie v. eNova Santé.
- 14.
Paris Court of Appeal, Pole 1 – Chamber 3, judgment of 2 February 2016, 1001Pharmacie v. Caudalie, RG n° 2014060579.
- 15.
Article 873 of the Code of Civil Procedure.
- 16.
Cour de cassation, Commercial Chamber, Caudalie/eNova Santé, no 16-15.067.
- 17.
Bundeskartellamt, Restriction of online sales of Asics running shoes, Press release of 28 August 2015.
- 18.
Competition Authority, Decision No 15-D-11 of 24 June 2015 relating to a request of interim measures concerning practices implemented in the sector of brown products distribution, in particular televisions, §8.
- 19.
EU Commission Final report on e-commerce sector inquiry, published on 10 May 2017, §42.
- 20.
Request for a preliminary ruling from the Oberlandesgericht Frankfurt am Main (Germany), lodged on 25 April 2016, Coty Germany GmbH v Parfümerie Akzente GmbH, Case C-230/16.
- 21.
Competition Council, Decision No 09-D-06 of 5 February 2009 regarding practices used by SNCF and Expedia Inc. in the online travel sales sector, §95–98.
- 22.
Competition Council, Decision No 09-D-06 of 5 February 2009 regarding practices used by SNCF and Expedia Inc. in the online travel sales sector, §10.
- 23.
Competition Council, Decision No 09-D-06 of 5 February 2009 regarding practices used by SNCF and Expedia Inc. in the online travel sales sector, §10.
- 24.
Competition Authority, Decision No 14-D-18 of 28 November 2014 regarding practices used event-driven online sales sector.
- 25.
Competition Authority, Decision No 14-D-18 of 28 November 2014 regarding practices used event-driven online sales sector, §113.
- 26.
Competition Authority, Decision No 14-D-18 of 28 November 2014 regarding practices used event-driven online sales sector, §115.
- 27.
Paris Court of Appeal, Pole 5 Chamber 7, 12 May 2016, RG 2015/00301, Brandalley v Showroomprivé.com, Vente-Privée.com, Autorité de la concurrence, Ministre de l’économie, de l’industrie et du numérique.
- 28.
Competition Authority, Opinion No 12-A-20 of 18 September 2012 on the competitive operation of electronic trade, §201.
- 29.
Competition Authority, Decision No 15-D-06 of 21 April 2015 regarding practices implemented by Booking.com B.V., Booking.com France SAS and Booking.com Customer Service France SAS in the online hotel reservation sector, §100.
- 30.
Competition Authority, Decision No of decision 16-DCC-111 regarding the acquisition of the Darty company by the Fnac group.
- 31.
CNNum, Report on the neutrality of platforms, 2014, p. 28.
- 32.
Competition Authority, Decision No 14-D-06 of 8 July 2014 regarding practices implemented by Cegedim in medical database sector.
- 33.
Bruno Lasserre, Hearing by the Committee of reflection and proposals on the law and the liberties for the age of the digital technology, 7 July 2015.
- 34.
Competition Authority, Decision No of decision 16-DCC-111 regarding the acquisition of the Darty company by the Fnac group.
- 35.
European Commission, Press release 27 June 2017, IP/17/1784.
- 36.
Competition Authority and Bundeskartellamt, Competition law and data, 16 May 2016; AFEC, Report on digital economy, February 2016.
- 37.
Competition Authority, Decision No 14-D-06 of 8 July 2014 regarding practices implemented by Cegedim in the medical database sector. Questioned about this qualification of essential facilities, the Court of Appeal of Paris avoided the issue, acknowledging the inadmissibility of the request (Paris Court of Appeal, Pôle 5, Chamber 5–7, 24 September 2015, RG No 2014/17586); Cour de cassation, 21 June 2017, No 15-25941.
- 38.
Comm. CE, Guidance on the Commission’s enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings, 24 February 2009.
- 39.
Competition Authority, Decision No 14-D-06, of 21 April 2015 regarding practices implemented by Booking.com B.V., Booking.com France SAS and Booking.com Customer Service France SAS in the online hotel reservation sector, §192 et seq.
- 40.
Competition Authority, Decision No 14-MC-02 of 9 Sept. 2014 regarding a request for interim measures submitted by Direct Energie in gas and electricity sectors.
- 41.
Competition Authority, Decision No 15-D-06 of 21 April 2015 regarding practices implemented by Booking.com B.V., Booking.com France SAS and Booking.com Customer Service France SAS in the online hotel reservation sector.
- 42.
Tribunal de commerce de Paris, 13e ch., 7 May 2015, RG No 2015/000040.
- 43.
Competition Authority, Decision No 13-D-07 of 28 February 2013, e-Kanopi, pt. 47.
- 44.
Competition Authority, Decision No 10-MC-01 of 30 June 2010 regarding a Request of interim measures from Navx; 10-D-30 of 28 October 2010 regarding practices implemented in online advertising sector.
- 45.
Competition Council, Decision No 09-D-06 of 5 February 2009 relating to practices implemented by SNCF and Expedia Inc. in the sector of online travel sales.
- 46.
SNCF committed to enable online travel agencies to distribute SNCF train tickets under the same technical conditions as the voyage-sncf.com website, to enable the function ‘Ticket Printed’ for online travel agencies, to allow the display of the iDTGV offers on the same web pages as other SNCF railway offers, and to no longer apply discriminatory conditions of remuneration.
- 47.
Paris Court of Appeal, 23 February 2010, RG No 2009/05544; Cour de cassation, 10 May 2011, No R 10-14.866 (withdrawal); Cour de cassation, 10 May 2011, No H 10-14.881 (requests for preliminary ruling of the CJEU); CJEU, 13 December 2012, case C-226/11; Cour de cassation, 16 April 2013, No H 10-14.881 (rejection); Cour de cassation, 11 June 2013, No H 10-14.881 (amendment).
- 48.
The practice of pooling consisted in, for PMU, to pool in a single mass for each bet and for each online bets made on Pmu.fr with those made under its monopoly ‘offline’.
- 49.
Competition Authority, Decision No 14-D-04 of 25 February 2014 relating to practices implemented in the online horserace betting sector.
- 50.
Competition Authority, Decision No 09-D-06 of 5 February 2009 regarding practices implemented by SNCF and Expedia Inc. in the online travel sales sector.
- 51.
Article L. 464-2 III of the Commercial Code.
- 52.
‘when the notified charges involve exclusionary practices on the part of a dominant undertaking, these are generally viewed as serious since they are capable of having the effect of hindering the access and the development of competitors on the market by means which do not constitute competition on the merits’, Competition Authority, Decision No 17-D-06 of 21 March 2017 regarding practices implemented in the sector of gas, electricity and energy services, §172.
- 53.
Competition Authority, Decision no 12-D-27 of 20 December 2012 regarding practices identified in the show ticketing sector.
- 54.
F. de Bure, « Engagez-vous, qu’ils disaient… » – Retour sur la politique d’engagements des autorités de concurrence, dix ans après », RLC, n°54, 1 October 2016.
- 55.
Law No 2015-990 of 6 August 2015 for growth, activity and equal economic opportunities (‘Macron Law’).
- 56.
Article L 430-8 IV 3° of the Commercial Code.
- 57.
Competition Council, Decision No 08-D-24 of 22 October 2008 relating to the water leasing and distribution and purification in Saint-Jean-d’Angély.
- 58.
Paris Court of Appeal, 2 July 2015, No 13/22609, EDF/Nexans; Cour de cassation, Commercial Chamber, 3 June 2014, no 12-29482, for follow-on actions, also, Cour de cassation, Commercial Chamber, 13 January 2015, no 13-21886; Court of Appeal of Paris, 14 December 2011, No 09/20639, for stand-alone actions.
- 59.
Articles L. 623-1 to L. 623-32 of the Consumer Code, introduced by Law no 2014-344 of 17 March 2014 and its implementing Decree No 2014-1081 of 24 September 2014.
- 60.
Articles L. 420-7 of the Commercial Code, R.420-3, R.420-4 and R.420-5 of the Commercial Code for mainland France and R.914-1, R.924-1 and R.954-1 of the Commercial Code for the Overseas Collectivities; also, Cour de cassation, Commercial Chamber, 9 November 2010, no 10-10937.
- 61.
Cour de cassation, Civil Chamber No 1, 29 September 2004, no 02-18335, EDF c/SNIET.
- 62.
Circular of 23 March 2017, BOMJ No 2017-03 of 31 March 2017.
- 63.
Directive 2014/104/UE of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union.
- 64.
Ordinance No 2017-303 of 9 March 2017 and Decree No 2017-305 of 9 March 2017.
- 65.
Circular du 23 mars 2017, BOMJ No 2017-03 of 31 March 2017, Sheet No 4.
- 66.
Competition Authority, Opinion No 13-A-12 of 10 April 2013 regarding a project of order of Minister of Social Affairs and health concerning the best practice of dispensation of medicine by electronic way.
- 67.
Competition Authority, Opinion No 17-A-09 of 5 May 2017 regarding a request from the Authority of Regulation of the Electronic Communications and the Posts concerning the fifth cycle of analysis of the wholesale markets of the high-speed and very high-speed.
- 68.
Competition Authority, Opinion No 10-A-29 of 14 December 2010 regarding the competitive functioning of the on-line advertising (request from the Minister); Opinion No 12-A-20 of 18 September 2012 regarding the competitive functioning of the e-commerce sector; Decision No 11-SOA-02 of 1 July 2011 concerning a self-referral for an opinion on the e-commerce sector.
- 69.
Competition Authority, self-referral, Decision No 16-SOA-02 of 23 May 2016 concerning a self-referral for an opinion on the exploitation of data in the on-line advertising sector.
- 70.
Study of 16 December 2014 on “The economics of open and closed systems”, with the Competition & Market Authority; Study of 10 May 2016 on “Competition law and data”, with the Bundeskartellamt.
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Arcelin, L. et al. (2018). France. In: Kilpatrick, B., Kobel, P., Këllezi, P. (eds) Antitrust Analysis of Online Sales Platforms & Copyright Limitations and Exceptions. LIDC Contributions on Antitrust Law, Intellectual Property and Unfair Competition. Springer, Cham. https://doi.org/10.1007/978-3-319-71419-6_6
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