For the first time since the ECN+ transposition into French Law in 2021, the French Competition Authority ("FCA") applies new sanction thresholds to an association of undertakings.
The anticompetitive practices implemented by ARIPA
ARIPA (Reunionese Interprofessional Fisheries and Aquaculture Association) was created in 2010 following the economic difficulties encountered by local fisheries and aquaculture stakeholders. Its mission is to improve knowledge and transparency of the market, to ensure better coordination of the marketing of fishery products and to promote local production. ARIPA is also in charge of redistributing European aid dedicated to the sector among its members.
In November 2022, the FCA fined ARIPA for organising an anticompetitive agreement between its members regarding the fixing of selling prices for fish and the control of production and outlets.
In particular, the FCA criticised ARIPA for setting up price guidance grids fixing the minimum resale prices per species of fish and per type of packaging, to be applied by the various types of members. Non-compliance with these guidelines could lead to partial or total exclusion from public aid. In addition, ARIPA established control over production and outlets by regulating the market, imposing serious constraints on all its members, including the collective implementation of promotional operations and actions intended to restrict or promote the sale of landed fish on the local market.
Application of the new penalty thresholds
These anticompetitive practices gave the FCA the opportunity to implement for the first time the new penalty thresholds applicable to associations of undertakings resulting from the transposition of the ECN+ Directive.
As a reminder, until May 2021, the amount of the fine imposed on an association of undertakings by the FCA could not exceed 3 million euros.
Henceforth, article L. 464-2 of the French Commercial Code provides that the maximum fine is now equal to 10% of the sum of the total worldwide turnover of each member active on the market affected by the infringement of the association, when, as in the present case, the infringement of the association of undertakings relates to the activities of its members.
ARIPA did not dispute the facts and requested the benefit of a settlement procedure which led to the previously mentioned 60,000 euro sanction.
The decision of the French Competition Authority is available here (in French).
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