Autorité de la concurrence (French Competition Authority) and intellectual property

The Autorité de la concurrence (French Competition Authority) is the independent administrative authority responsible for regulating competition in France. It sanctions anticompetitive practices prohibited by Articles L. 420-1 and L. 420-2 of the French Commercial Code and by Articles 101 and 102 TFEU, reviews mergers and issues opinions. It intervenes in intellectual property matters where the exercise of an exclusive right or the negotiation of a licence distorts competition, particularly in the pharmaceutical and digital sectors.

The Authority’s powers

Cases may be referred to the Authority by an undertaking or by the Minister for the Economy, and it may also act of its own motion. It has investigative powers and may order interim measures where the practice complained of causes serious and immediate harm to the economy in general, to the sector concerned, to consumers’ interests or to the complainant undertaking. It may also accept commitments that address its concerns and impose fines capped at 10% of worldwide turnover. Its decisions may be appealed to the Paris Court of Appeal, and then to the Court of Cassation.

Practices examined in intellectual property

The Authority has repeatedly sanctioned the disparagement of generics by originator companies, aimed at slowing substitution and protecting sales of the reference medicinal product. It also examines, as abuse of a dominant position, refusals of access falling under the essential facilities doctrine and the licensing terms of standard essential patents, and, as anticompetitive agreements, arrangements delaying the entry of competitors, such as pay-for-delay agreements. Its analysis rests on the definition of the relevant market and on proof of a dominant position or of a meeting of minds, depending on the legal basis relied on.

Interaction with the intellectual property courts

The Authority rules neither on the validity nor on the infringement of intellectual property rights, which fall within the jurisdiction of the ordinary courts and, for patents, of the Paris Judicial Court or the Unified Patent Court. The two types of litigation nonetheless intersect. A final decision of the Authority finding a competition law infringement irrebuttably establishes the existence of the practice before the court hearing the damages claim, and a court seised of a competition dispute may ask the Authority for an opinion. Finally, a defendant in an infringement action may raise an anticompetitive practice without waiting for a decision of the Authority.

Key points

The Autorité de la concurrence reviews the exercise of intellectual property rights where it serves an exclusionary strategy or an anticompetitive agreement. The pharmaceutical sector has been one of its main areas of intervention, notably in relation to the disparagement of generics. An excluded undertaking may seek interim measures, which require proof of serious and immediate harm. A referral to the Authority should be coordinated with proceedings before the intellectual property court, as their timetables and purposes differ.

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This glossary entry is general in scope and does not constitute legal advice.

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