The competition law approaches are certainly too disparate

Joaquin Almunia, the new Commissioner of competition in Europe, in has not finished sensitive files. Appointed on 9 February 2010, it must resolve several important issues for firms. It will also have to bring more coherence between the different competition authorities to facilitate the respect for the right of competition by companies. Review of retail.

In January 2010, the Commission launched a consultation on the "best practices" competition. This was to codify the practice and to consider whether there is material to improve the rules which it applies. The challenge is to size: the amount of the penalties imposed in 2009 reached 1.623 million euros and companies often ignore the mechanisms leading to their conviction. Predictability and transparency of the procedures are frequently taken by default. The Commission too often seems to have a fully discretionary power. For example, it is not known what the guide when a company sentenced to pay a fine does not have the financial means to pay. In 2009, Almamet society thus benefited from a reduction of 20 of the fine was imposed, in view of its financial situation.

More certainly, the New Direction of the competition will have to handle the revision of the guidelines on horizontal restrictions, i.e. agreements and behaviour likely to be apprehended in terms of the agreements. It is hoped that it regulates the issue of the exchange of information between competitors. For the Commission, in fact, some exchanges are anti-competitive solely because of their purpose. It follows on this point the Court of justice, which, in the case of T-Mobile Netherlands of 2009, held that the mere anticompetitive object of a meeting between competitors provides search its possible anti-competitive effects. A divergence of jurisprudence with the France: in the case of so-called ' agreement on mobile in June 29, 2007 France", the Court of cassation insisted that be sought the scope and purpose of the exchange of information between the three great actors of the sector, refusing to sanction the Exchange because of its purpose.

An emblematic case

Another theme in the draft guidelines and another divergence of predictable jurisprudence: the problem of the rights and obligations facing companies participating in the research of the SSO ("standard setting organization"), agencies responsible for the development of technical standards. To avoid that competitors combined in these organizations are not in agreement on the technical developments of standards in their industry, most of these organizations require their members to disclose the existence of any patent on products subject to the standardization process in which they participate and then commit to grant a patent licensefree or so-called conditions "FRAND" ("fair, reasonable and non-discriminatory") then the patent in question is likely to be infringed by the making of the standard developed by the SSO.

In this regard, the Rambus case, examined by the Commission, is emblematic. In this case, Rambus, holder of patents on memory DRAM used in PCs, had participated in the work of an SSO for the development of standards for these submissions, standard vocation to bear on 95 of the world market. At no time during the standardization process, the company had unveiled the existence of its patent on the technology used. As soon as the standard adopted, Rambus, taking advantage of the monopoly of his patent, attempted to obtain disproportionate royalties. Before a complaint for abuse of dominant position, the Commission has imposed consent licenses FRAND conditions. At the same time, the American courts seized of the case on the other hand rejected the appeal on the ground that it was not shown that, in the hypothesis where Rambus would have revealed the existence of the patent, the SSO could choose an alternative technology.

The competition law approaches are certainly too disparate. The search for coherence is now essential for legal certainty for companies.