European Union: Competition News - April 2016

Last Updated: 20 April 2016
Article by Emmanuelle van den Broucke and Sara Pomar

Requests for information: reinforced statement of reasons for late investigative measures

With four decisions of March 10, 2016, the European Court of Justice (the "ECJ") reminded the European Commission of its obligation to state properly the reasons for its requests for information aimed at undertakings in the context of a competition investigation. This decision completes the judgment of the General Court of the European Union of November 14, 2012 which had sanctioned the Commission's practice of reviewing all the activities of an undertaking, when only one activity was concerned by the investigation (fishing expeditions).

In the case at hand, the Commission had carried out inspections in the premises of companies active in the cement sector in November 2008 and September 2009. Following these inspections, a first request for information was sent. On December 6, 2010, the Commission decided to initiate proceedings against seven of these companies. Finally, on March 30, 2011, the Commission sent a further request for information, against which four companies brought an action for annulment.

Following a dismissal by the General Court, the parties obtained, on the grounds of a failure to state reasons, the annulment of the request for information before the Court which adopted a balanced reasoning, protecting both the Commission's investigative capabilities and the parties' rights.

As a reminder, Article 18.3 of Regulation No. 1/2003 states that a decision for request for information must notably indicate "the purpose of the request", i.e. the infringement alleged by the Commission. This allows the parties and the courts of the EU to verify whether the request for information is justified and proportionate.

In the context of this control, the ECJ established a reasoning intended to ensure that (i) the parties are well aware of the infringement of which they are accused and that (ii) the Commission has sufficient elements to specify this infringement. To do so, the ECJ takes into account the general context of the case.

In this case, the General Court had dismissed the parties' claim, considering that although the purpose of the request had been formulated in "very general terms which would have benefited from greater detail", this had not had any impact since the combined reading of the decision in issue and the decision to initiate proceedings were sufficient to enlighten the parties.

The ECJ disagreed with this reasoning. It stated that "the infringement alleged [is] expressed in a particularly succinct, vague and generic manner", whether in the request for information or in the decision to initiate proceedings. Furthermore, the ECJ noted that the request for information "occurred more than two years after the first inspections, and even though the Commission had already sent a number of requests for information [...] several months after the decision to initiate proceedings".

The ECJ thus weighed the two interests at stake. It considered that the Commission could provide more precise elements on the alleged infringement, since numerous elements had been collected during the previous years, thus protecting the interests of the parties under investigation. However, by acknowledging that this appreciation is based in this case on the particularly lengthy duration of the procedure, it did not take away from the Commission all possibility to investigate, notably in the first stages of the investigation (in particular in the case of inspection decisions), when the Commission "does not yet have precise information".

This decision is likely to have significant consequences on the Commission's future practice. The Commission will now have to develop little by little, as the investigation progresses, its justification regarding the alleged infringements for any further request for information. Consequently, if after several procedural acts (requests for information, inspections, etc.), the Commission still does not have sufficient elements to find the existence of an infringement, it will be very difficult for it to justify further investigative measures, and it may therefore be forced to abandon certain insufficiently supported proceedings.

Caudalie/1001pharmacies case: the prohibition to resell products on online marketplaces outside the selective distribution network is not manifestly lawful

By a decision of February 2, 2016, the Paris Court of Appeal rejected Caudalie's request for summary proceedings to put an end to eNova's practices breaching its selective distribution network.

Caudalie, whose primary activity is the manufacturing and distribution of cosmetics, had set up a selective distribution network with pharmacies and parapharmacies, pursuant to which it is possible for a distributor to resell online, provided the latter sells on its own website and that a certain number of qualitative criterions are met.

Finding that 1001pharmacies, an online marketplace set up by eNova, was distributing its products, Caudalie requested in summary proceedings the cessation of this commercialization, in that it constituted a manifestly unlawful disturbance breaching Article L. 442-6, I, 6° of the French Commercial Code which sanctions the breach of a selective distribution network. The summary proceedings judge of the Paris Commercial Court concurred and ordered eNova to cease all commercialization of Caudalie products on the site 1001pharmacies.

But the Paris Court of Appeal overturned the Court's order considering that the prohibition to resell on marketplaces constituted a demonstrated restriction of competition.

However, the Court's decision is flawed because of a hasty and biased legal analysis. First of all, it dismisses the fact that the European Commission had precisely validated in its guidelines on vertical restrictions the possibility to prohibit an approved distributor from selling on a marketplace when the customer accesses the marketplace via a site which bears the name of the marketplace. 

Furthermore, the decision is based on an incorrect interpretation of the decision-making practice on which it relies. Thus, it bases itself on (i) a procedure still pending before the French Competition Authority (Samsung case), (ii) a press release from such Authority observing the unilateral and voluntary modification of Adidas's terms and conditions of sale without this case leading to a binding decision from the Authority, and (iii) a decision from the German competition authority which is still subject of debate in Germany and which is not considered as a precedent in France.

We are far from a body of serious and consistent evidence characterizing the proof required by a judgment in summary proceedings constituting a demonstrated restriction under competition law!

This decision seems to fall within the trend towards an obligation for suppliers to accept resale by their approved distributors of their products on online marketplaces. But this point is currently the subject of debate in Europe and it is surprising that the Court has chosen, in summary proceedings, to anticipate the French and European decisions expected on this question.

Communications or warnings from independent administrative authorities can be invalidated by the French Supreme Administrative Court

In two decisions dated March 21, 2016, the French Supreme Administrative Court (CE) accepted the admissibility of appeals against, on the one hand, a letter from the French Competition Authority (FCA) informing Numéricable of its unpublished decision to modify the undertakings to which it had subjected a merger authorization and, on the other hand, against communications from the French Autorité des Marchés Financiers warning investors against Fairvesta's activities.

The CE thus acknowledges the administrative courts' control over acts of independent administrative authorities which are not decisions. Whereas an appeal was admitted only against decisions with a general and mandatory nature or setting out individual requirements, the CE accepts that operators with a certain and direct interest to sue may lodge appeals against warnings or communications from independent administrative authorities if the latter are likely to produce significant effects, notably of an economic nature, on these undertakings, or intended to influence significantly their recipients' behavior (which could be the case for instance of reports from the French Court of Auditors).

These decisions have special resonance in competition law. First of all, the CE opens the right to appeal against decisions modifying an operator's undertakings made by the FCA. Furthermore, it greatly extends the possibilities to appeal against FCA opinions by allowing such appeals when they have significant economic effects, whereas until now, these appeals were only accepted when the opinion had a general and mandatory nature or set out individual requirements.

Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions