Competition News - December 2015

Author:Ms Emmanuelle van den Broucke and Sara Pomar

The French Competition Authority recalls that a resale price mentioned publicly is not necessarily an imposed resale price

The French Competition Authority inaugurated December with a non-suit concerning an alleged unlawful agreement on resale prices between a supplier and its distributors.

The novelty of this case resides in the fact that the prices in question were simply mentioned by the supplier during a press conference. To mark the launch of its Wii console on the European market, Nintendo organized a press conference in London, during which the president of the group made several announcements in English on the sale prices of the Wii console indicating that the "estimated" sale price of the new console was €249.

At the stage of the preliminary investigation, the Authority's investigating service considered that these practices could constitute resale prices imposed by Nintendo, and they sent a statement of objections in this respect to Nintendo.

However, the Authority did not follow its case-handlers. In its decision of December 1, 2015, the Authority first recalled that proof of such unlawful agreement on prices, in the absence of clear contractual clauses signed between the parties to the distribution agreement, results from precise serious and concordant items of evidence including:

The mention between the supplier and its distributors of the resale prices of the products to the public; The implementation of a policy or at least monitoring on these prices; and The observation that the prices mentioned were actually applied by the distributors. Concerning the first condition, i.e. mentioning the prices, the Authority pointed out that this includes all forms of communication likely to be used by a supplier to inform its distributors of the recommended sale prices. Thus, in this case, this condition is met, according to the Authority, since the announcements made by the group's president at the press conference, and relayed in France by Nintendo's European website and by the French press, did concern the French market and were intended to inform the distributors of the recommended retail sale prices.

However, the Authority dismissed the existence of an anticompetitive practice in the absence of proof concerning the second condition relating to the monitoring by the supplier of the resale prices charged.

Although in the end, Nintendo was not held liable in this case, the fact remains that this decision shows that mentioning resale...

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