On Tuesday 14 November (case C-671/15), the Court of Justice of the European Union (CJEU) stated that concertation on prices and quantities between several agricultural producer organisations and associations of such organisations may constitute practices contrary to EU competition rules, thereby following the conclusions of Advocate General Nils Wahl of 6 April of this year (see EUROPE 11763).
In 2012, the French Competition Authority imposed fines of around €4 million on producer organisations (POs), associations of producer organisations (APOs) and various bodies and companies for anti-competitive practices in the production and sales of endives. This was on the grounds of agreements on prices and quantities of endives sold and the exchange of strategic information.
The organisations challenged the fine, arguing that these practices come under the Common Agricultural Policy (CAP). The Court of Cassation asked the CJEU for a preliminary ruling, to find out whether the actions in question were compatible with EU law.
Following the reasoning of the Advocate General, the Court firstly observes that the CAP has precedence over the competition objectives, meaning that certain agricultural practices may be excluded from the scope of application of the competition rules, for instance those of POs and APOs. However, also observing that the common organisations of the markets in agricultural products are not a competition-free zone, the Court considers that the practices of an entity not recognised by a member state in pursuance of one of the objectives assigned to POs and APOs cannot be exempted from competition law.
To be acceptable, the Luxembourg court also considers that the commercial practices of POs or APOs must remain solely within that PO or APO and, therefore, that concertation practices between several POs or APOs, a fortiori involving other organisations, cannot escape the prohibition of concerted practices.
Finally, the CJEU finds that only very specific practices within the same PO or APO may be taken out of the scope of the competition rules, such as the coordination of volumes or tariff policy, as well as the exchange of strategic information. This is therefore not the case with collectively setting minimum sales prices. (Original version in French by Lucas Tripoteau)