competition council
LexInter | April 29, 2003 | 0 Comments

COMPETITION COUNCIL

The Competition Council (section I),

Considering the letter registered on May 30, 2001 under the numbers F 1313 and M 282, by which the company Competition referred to the Competition Council of practices implemented by the company Sony France which it considers anti-competitive and also requested , the pronouncement of provisional measures;

Given the Book IV of the Commercial Code and Decree No. 86-1309 of 29 December 1986 amended laying down the conditions of application of Ordinance No.  86-1243 of 1 st  December 1986;

Having regard to the observations presented by the Competition companies, Sony France and the Government Commissioner;

Having regard to the other documents in the file;

The rapporteur, the deputy general rapporteur, the government commissioner and the representatives of the Competition companies, Sony France, heard at the meeting of July 17, 2001;

Reminder of the referral

Considering that, by letter registered on May 30, 2001, the company Competition seized the Council of the competition of practices implemented by the company Sony France on the markets of the audio-visual products, the computers and the video-projectors; that it exposes, first of all, that the company Sony France has suddenly put in place new conditions of sale from the 1 st  April 2001, the main characteristic of which would be to increase the overall amount of deferred rebates and services billable by the distributor; that thus operating the company Sony France would aim to raise the threshold of resale at a loss, as well as to fix a minimum level to the resale prices and to the distributors’ margins; that the company Competition would henceforth be prevented from practicing its traditional policy of low prices, thus causing a disaffection of customers vis-à-vis its brand and restricting competition on the market; that secondly, it indicates that the company Sony France would have caused the fall of the sales of the company Competition to the companies of ”  its network” , first by stopping direct deliveries to this clientele, then by refusing to grant them a 3% logistics discount; that third place, it denounces character anti-competitive a clause common sign opening right to a discount based on turnover achieved;

Considering that the company Concurrence maintains that it is placed in a situation of economic dependence on the company Sony France, in particular because of the market shares that this company holds, its notoriety and the importance that represents the Sony brand in its turnover, which it estimates at 95% of its purchases; that the company Concurrence therefore claims to be forced to accept the new conditions of sale of the company Sony France, adopted by the latter suddenly and without prior negotiations; that it declares that the practices complained of are seriously undermining and immediate, on the one hand, to the interests of the company Competition, due to the deterioration of the conditions of sale granted to it by Sony France and the fact that a greater part of these conditions would not be entered on the invoices, would prevent it from practicing, as before, low prices and would risk to cause a significant drop in its sales, on the other hand, to the market and to the interests of consumers, who no longer have the possibility of benefiting from competitive prices; that consequently, on the basis of Article L. 464-1 of the Commercial Code, it asks the Competition Council to order the company Sony France to include on the invoices the deferred rebates and the services rendered by distributors, to grant the Competition company the logistics discount,

On the procedure

Regarding respect for the rights of the defense and the adversarial principle

Considering that following oral interventions by the rapporteur and the deputy general rapporteur, both of whom concluded that the referral was rejected for lack of sufficient evidence, Mr Chapelle, representing the company Concurrence, argued that he had been summoned to examine the admissibility of the referral and the request for provisional measures, but not the existence in the file of its referral of sufficiently convincing evidence; that after having requested additional time to prepare his defense in this regard and that the Council meeting be postponed, he nevertheless presented the means and elements on which his referral and his request for provisional measures are based. ;

Considering that article 12 of decree n °  86-1309 of December 29, 1986 specifies that the request for precautionary measures can be made only incidentally to a referral to the merits; that, consequently, the Council must, before ruling on the request for provisional measures, examine whether the referral to the merits is admissible and whether it is based on sufficiently convincing elements to justify the opening of a procedure;

Considering that the law of May 15, 2001, relating to new economic regulations, which entered into force on May 18, 2001, modified the wording of Article L. 462-8 of the Commercial Code, which now states in paragraph 2 that the Council ”  can also reject the referral by reasoned decision when it considers that the facts invoked are not supported by sufficiently convincing elements ” , that before this reform, this text provided that the absence of such elements led to inadmissibility demand ; that the question which arises in the Council is therefore always that of the possible absence of sufficiently convincing elements produced by the seizing party, only being modified the sanction applicable in such a case, the inadmissibility of the referral having given way to the rejection of the latter;

Considering that the convening letter sent, on June 20, 2001, to the president of the company Competition specified that: ”  The Competition Council will examine the admissibility of your referral as well as your request for precautionary measures in its meeting of Tuesday, July 17, 2001 at 2:30 p.m. “”; that the company Competition indicated in its memorandum, entitled ”  Update of the situation and requests  ” , filed on July 11, 2001, that ” Since the new law on economic regulations, the concept of admissibility has been reduced; it no longer includes the question of knowing whether the referral contains sufficient elements not to exclude the existence of practices referred to in Articles 7 and 8. In the present case, the summons only relates to admissibility. Nevertheless, we argue on the existence of evidence (…)  “;

Considering that it follows from the foregoing that the rights of the defense and, in particular, the adversarial principle have been respected;

On the referral at the bottom

Regarding the economic dependence of the company Competition

Considering that Article L. 420-2 paragraph 2 of the Commercial Code prohibits “when it is likely to affect the functioning or structure of competition, abusive exploitation by a company or a group of companies the state of economic dependence in which a client or supplier company finds itself in relation to it “;

Considering that economic dependence, within the meaning of Article L. 420-2 paragraph 2 above, results from the reputation of the supplier’s brand, the size of the supplier’s market share, the size of the of the supplier in the turnover of the reseller, provided that this share does not result from a deliberate choice of commercial policy by the client company, finally, from the difficulty for the distributor to obtain other suppliers of the products equivalents; whereas these conditions must be simultaneously verified to lead to this qualification;

Considering that, in its observations, the company Concurrence argues that the new wording of article L. 420-2, as it results from the aforementioned law of May 15, 2001, since it no longer directly refers , as before, in the absence of an equivalent solution, implicitly removed this condition; that it argues that the disappearance of this condition results from the will of the legislator, as it emerges from the parliamentary debates, to protect small and medium-sized enterprises;

Considering that the reading of all the parliamentary work relating to the drafting of the law on new economic regulations, both in the Senate and in the National Assembly, makes it possible to observe, with regard to the drafting of the article L. 420-2, that if, during the debates, a desire was expressed to make it easier to sanction the abusive exploitation of a state of economic dependence, the discussion on how to obtain this result and the solution adopted to achieve this concerned the harm to competition in the market; that at no time did the debates relate to the condition relating to the absence of an equivalent solution;

Considering that, if the new wording of this text no longer includes an explicit reference to the absence of an equivalent solution, the fact remains that economic dependence, within the meaning of Article L. 420-2 of the Code of trade, can only result from the impossibility in which a company finds itself to have a solution technically and economically equivalent to the contractual relations that it has entered into, either as a customer or as a supplier, with another business ; that the conditions established by case law and recalled above only set out criteria which make it possible to determine the existence or absence of an equivalent solution; that, therefore,

Whereas, on the basis of these principles, the Paris Court of Appeal, in a Sony judgment of July 5, 1991, held that: ” Considering that, whatever the notoriety of the Sony brand, the results neither of studies relating to its perception by consumers (IPSOS study), nor of technical specificities, whose innovative character has not been demonstrated, of products which are the support, that the continuation of the activity of “general public” electronic distributor is subordinated to the possibility of offering them for sale; that it cannot therefore be maintained, for any of the categories of apparatus in question, that there was for the applicants an absolute dependence of the range on the supplier concerned, that it cannot be further asserted that , in the ranges of items offered by the many other producers of electronic equipment, there were no technically interchangeable products; than,

“That, as regards the market shares held during the period considered, for none of the families of said products, even for camcorders, for which it occupied the first rank, the company Sony France did not stand out, in a significant and lasting way, from other producers occupying similar positions; that, from one year to the next, the distribution of the market, where the types of devices of this brand were classified respectively between the first and the twelfth place, knew, in its various segments , significant fluctuations; whereas, moreover, if the turnover achieved by the three companies in question in Sony branded equipment is significant, in particular as regards the Semavem company and mainly for televisions, such a situation,out of proportion with the respective positions of the products of this brand on the market, can only result from a deliberate commercial policy of the three distributors concerned who could freely opt for a diversification of their sources of supply;

Considering therefore that, neither because of the notoriety of the mark or of the characteristics of the products in question, nor because of their position on the market or the impact they have on their turnover, the Competition companies , Jean Chapelle and Semavem were, during the reference period, in a state of economic dependence on the company Sony France so that none of the facts denounced can be sanctioned as the abusive exploitation of a such state;

Considering that, with regard to brand awareness, it is common ground that there exist on the market brands of notoriety equivalent to that of Sony, such as Canon and JVC for camcorders, Philips, Thomson, Brandt for televisions and video recorders, Philips, Aïwa or Pioneer for HiFi; that with regard to computers and their peripherals, there are specialized brands of notoriety higher than Sony, such as IBM, Compacq or Apple; whereas it has not been demonstrated that, in the ranges of articles offered by the numerous other producers of electronic equipment, there are not technically interchangeable products; that the changes of suppliers for this category of products can take place without delay and without significant cost, as demonstrated, on the one hand, by the speed with which,

Whereas, with regard to the volume market shares held by the company Sony France for products in the audio-video range, on the basis of data from the investigation company GFK joined to the observations of the company Sony France, it appears, in the first place, that these market shares are differentiated according to the types of product and that other brands have, in most of these product ranges, market shares close to or greater than those of the Sony brand; that thus, at the end of 2000 / beginning of 2001, on the whole of the audio-video products market, Sony’s market share was 18% against 15.5% at Philips and 9% at Thomson; in portable audio, it is 24% against 18% for Philips and 9% for Aïwa; on DVD, 13% against 21% at Philips and 11% at Pioneer; in camcorders, 32% against 24% at Philips and between 9 and 10% for Canon, Samsung and Panasonic; in HiFi, 16%, tied with Philips, against 13% for Aïwa and 9% for JVC; in television, 18% against 25% at Philips, 15% at Thomson and 5% at Panasonic; in digital photography, 14% against 17% for Olympus and Fuji, 12% for Nikon and Canon; secondly, for products where the Sony brand is best placed, its market share fell significantly between 1997 and 2000, this erosion testifying to the possibility of substitution by brands that were initially less well placed and to the inability for Sony to withdraw from competition from other brands; that in this way, in analog camcorders, Sony’s share rose, over this period, from 32 to 25%, in digital camcorders from 60 to 44% against 13% for Aïwa and 9% for JVC; in television, 18% against 25% at Philips, 15% at Thomson and 5% at Panasonic; in digital photography, 14% against 17% for Olympus and Fuji, 12% for Nikon and Canon; secondly, for products where the Sony brand is best placed, its market share fell significantly between 1997 and 2000, this erosion testifying to the possibility of substitution by brands that were initially less well placed and to the inability for Sony to withdraw from competition from other brands; that in this way, in analog camcorders, Sony’s share rose, over this period, from 32 to 25%, in digital camcorders from 60 to 44% against 13% for Aïwa and 9% for JVC; in television, 18% against 25% at Philips, 15% at Thomson and 5% at Panasonic; in digital photography, 14% against 17% for Olympus and Fuji, 12% for Nikon and Canon; secondly, for products where the Sony brand is best placed, its market share fell significantly between 1997 and 2000, this erosion testifying to the possibility of substitution by brands that were initially less well placed and to the inability for Sony to withdraw from competition from other brands; that in this way, in analog camcorders, Sony’s share rose, over this period, from 32 to 25%, in digital camcorders from 60 to 44% 12% for Nikon and Canon; secondly, for products where the Sony brand is best placed, its market share fell significantly between 1997 and 2000, this erosion testifying to the possibility of substitution by brands that were initially less well placed and to the inability for Sony to withdraw from competition from other brands; that in this way, in analog camcorders, Sony’s share rose, over this period, from 32 to 25%, in digital camcorders from 60 to 44% 12% for Nikon and Canon; secondly, for products where the Sony brand is best placed, its market share fell significantly between 1997 and 2000, this erosion testifying to the possibility of substitution by brands that were initially less well placed and to the inability for Sony to withdraw from competition from other brands; that in this way, in analog camcorders, Sony’s share rose, over this period, from 32 to 25%, in digital camcorders from 60 to 44%, in mini-disc players from 65 to 48%;

Whereas the Paris Court of Appeal, in a judgment of July 7, 1995, clarified that the existence of a state of economic dependence could not result from the sole achievement of the major part of the turnover of the company with the same supplier; that it estimated, in the case in point, that the contractual dependence of the company vis-à-vis this supplier proceeded, not from objective circumstances, but from a strategy chosen by her; that the same principles were applied by the Versailles Court of Appeal, in a GIE Elis judgment of 8 October 1999, which notes that the company’s situation on the market in question was the result of a strategic development choice carefully deliberated since many years, for which she did not provide any proof that it would have been imposed on her and that it was completely free that she had chosen to favor roughly, in equal parts, two clients determining the bulk of her turnover , while the market was very diverse; that the precariousness specific to the competitive market should have led it, out of prudence and to ensure the sustainability of the company, to diversify its outlets rather than to settle on the development of two important prescribers; that because of this strategy for which she was solely responsible, the applicant could not attribute to one or other of her clients the consequences of her choices, although the CIE Elis had faithfully informed her of the modification of her purchasing and procurement policy, which the applicant had had plenty of time to examine,

Considering, with regard to the share represented by the Sony brand in the sales of the Competition company, i.e. 95% , according to a handwritten table communicated by the Competition company, that such a level is out of proportion with the respective positions of the products of this brand on the market and that it can only result from a deliberate commercial policy of the company Concurrence, which could freely opt for a diversification of its sources of supply;

Considering that it follows from the foregoing, both as regards the comparative notoriety of the brands, as well as the market shares by category of products, their evolution, and the commercial strategy deliberately adopted by the company Concurrence, that it does not it has not been shown that it was difficult for the latter to source products from other brands; that thus, it is not established that the company Competition is placed in a situation of economic dependence compared to the company Sony France, nor that the latter would be in a situation of dominant position on the various product markets considered;

Considering, moreover, that the company Competition provides no evidence to support its allegations, according to which the establishment of new conditions of sale by the company Sony France and the application made to it result from agreement ;

On the new conditions of sale for Sony brand products

Whereas the conditions of sale set up by the company Sony France as of 1 st  April 2001 consist, first, in quantitative and qualitative discounts from immediate deduction of the invoiced price, second, in qualitative rebates and quantitative objectives, settled by deferred credits, it being specified that it is planned that these rebates will appear on the invoices, as soon as the thresholds which give entitlement to them are reached, thirdly, in the form of cooperation agreements, specific services provided by the distributor, paid for after issuance of an invoice by the distributor;

Considering that, in its Sony decision n ° 90-D-42, the Council considered: ”  that the fact for a producer of branded products to grant qualitative discounts, in addition to quantitative discounts, to those of its distributors who offer services does not in itself constitute a practice prohibited by 1’ordonnance 1 st  December 1986 provided that the conditions for obtaining these qualitative rebates do not exclude distributors who are willing to provide the services concerned, they are defined objectively and are not applied in a discriminatory manner and that they have neither the object nor the effect of limiting the freedom of traders to independently determine their resale price policy ” ; whereas, in that decision, the Council adopted the same analysis as regards cooperation agreements, purchasing commitments and programmed promotions; that this analysis was confirmed by the Court of Appeal in a judgment of 5 July 1991, rendered on the appeal against this decision;

Whereas the Court of Cassation, in a judgment of October 24, 2000, rendered on the appeal brought by the company Concurrence against a judgment rendered on March 10, 1998 by the Paris Court of Appeal, considered, first of all, that the The granting of deferred rebates is not restrictive of competition, when the principle and the amount of these advantages are acquired, with certainty, as soon as the quantitative thresholds which determine their allocation are crossed and when all the distributors can, without risk , nor restrictions, to pass the amount on to their selling prices, secondly, that the detailed description of the services constituting the services provided for in the cooperation agreements had enabled the court of appeal to make the exact assessment of the specific character of these services,detachable from sales transactions and that it had rightly ruled out that the independent invoicing of these services could constitute a practice of taxing a margin, since they themselves establish the invoicing of said services, distributors necessarily know the elements and can take them into account to determine their floor price;

Considering, in the first place, that with regard to the products of the Sony audio-video range, the maximum rate of discounts on invoices has risen, as from 1 st  April 2001, to 27% against 24% previously; that the maximum rate of deferred rebates has passed from 3% to 4,5% and that, as before 1 st  April 2001, it is expressly provided that they will appear on the invoice as soon as the thresholds which entitle them to it will be reached; whereas the maximum rate of remuneration for services under cooperation agreements has been increased from 5% to 8%; that it emerges from an examination of the elements communicated both by the company Competition and by the company Sony France, that the conditions granted to the company Competition are more favorable after the 1 stApril 2001 than before that date; that in this way, it obtains a total of 23.5% of invoice discounts against 21% previously, 4.5% of deferred discounts, i.e. the maximum accessible, against 3% previously, 8% of service fees, i.e. the maximum accessible, compared to 5% previously;

Considering, in the second place, that with regard to portable computers (range known as VAJO), the company Concurrence, which previously did not market these devices, benefited from the company Sony France, in 1999 and until April 2000, a basic invoice discount of 18.16% then 19%, entitled ”  exceptional discount  “, a so-called “financial” discount of 1.5% and 4% deferred, in respect of service discounts, while the scale applied to distributors provided for a quantitative discount of 14% for an amount of purchases made the previous year of at least 10 MF, qualitative discounts for a total of 5% to which could be added service rebates for a total of 6%; that between May 2000 and March 2001, the company Concurrence, whose purchases from Sony for these products amounted to 819 KF in 1999, was granted by the company Sony France a quantitative discount of 15% , a 3% demonstration discount and a 2% range discount, for a total of 20% ,while the first tranche of the scale applied to distributors provided for a quantitative discount of 13% for an amount of purchases made the previous year of at least 15 MF, and qualitative discounts for a total of 6%, which could be add service rebates for a total of 4%; that in addition in its writings, addressed to the company Sony, the company Concurrence recognizes that it does not provide demonstration for these products; that it appears from what precedes that the company Competition benefited from derogatory conditions, even though it did not fulfill the conditions of access to the quantitative reductions provided for by the scales;

Considering that as of April 2001, the company Sony France implemented a new scale including a quantitative discount according to the amount of purchases of the previous year, i.e. 19% for purchases between 9 and 34 , 9 MF, 20% between 35 and 99.9 MF, 21% beyond 100 MF; that, in its writings, the company Sony argues that the threshold of 9 MF with a remuneration of 19% would have been defined, precisely, to adapt the scale to the specific situation of the company Competition and allow it to access a remuneration close to what it obtained before (20%), while avoiding perpetuating the discriminatory regime from which it benefited until then; that this presentation is corroborated by the comparison with the preceding scale; that in fact, the new scale is more favorable than the previous one, for which the entry threshold was higher (15 MF) for lower remuneration (13%) and for which the upper levels were less remunerative (in 2001, a figure of purchases of 35 MF allows to obtain a reduction of 20% against 14% in 2000); that the company Concurrence, whose purchases amounted to 10 658 KF in 2000, obtained a discount of 19%; that the scale also provides for a discount on invoice of 1% for exceptional commercial transactions, a deferred rebate of turnover target of 1% ,which may appear on the invoice as soon as the objectives are achieved, a service fee of 2% for feedback; that the company Concurrence, as soon as it satisfies the required conditions, thus has the possibility of obtaining between 1 and 2% of discounts on additional invoices, thus bringing to 20 or 21% its overall rate of discounts; that consequently, it is not demonstrated that the strong fall of the sales of computers Sony of the company Concurrence would be attributable to the modification of its conditions of purchase;

Considering, in the third place, that with regard to monitors for computers, the company Concurrence, whose purchases for these products reached 317 KF for the year 2000, obtained from the company Sony France, until April 2001, a net price, excluding the scale, equivalent to a basic invoice discount of 32.94% , while the first tranche of the scale applied to distributors provided, until October 2000, for a quantitative discount of 18% for a amount of purchases made the previous year of at least 1.5 MF, then, from October 2000, 14% for 2 MF of purchases, qualitative discounts for a total of 6% ,then, 4% (3% demonstration and 1% for exceptional commercial operations); that, in various letters addressed to the company Sony, the company Concurrence recognizes that it does not provide demonstration for these products; that it appears from the above that the company Competition benefited from privileged derogatory conditions, whereas it did not meet the conditions of access to scales;

Considering that as of April 2001, the company Sony France implemented a new scale including a quantitative discount according to the amount of purchases of the previous year, the first installment of which is 12% for a purchase figure of 700 KF, then 13% for 1 MF, 14% for 2 MF, 15% for 3 MF, 16% for 5 MF, 17% for 9 MF; that the new scale is more favorable for small distributors than the previous one, since it creates two additional lower levels, with an access threshold of 700 KF, against 2 MF previously, and only 2% of pay gap between these two levels; that the company Concurrence, whose purchase turnover amounted to 317 KF in 2000, benefited from the reduction of 12%; that the scale also provides for an invoice discount of 1% for exceptional commercial transactions, as well as a 3% demo discount; that the company Competition, since it satisfies the required conditions, thus has the possibility of obtaining between 1 and 4% of discounts on additional invoice, which brings between 13 and 16% its global rate of discounts;

Considering, fourthly, that with regard to video projectors, the company Concurrence, whose purchases in 2000 concerned four devices representing a purchase amount of 55,000 F, benefited, until March 2001 , from Sony France, a basic invoice discount of 16%, entitled ”  exceptional discount  ” and a so-called financial discount of 1.5%; that from April 2001, the company Sony France implemented a scale including a quantitative discount based on the amount of purchases of the previous year between 1 and 5% ,access to the first tranche of the scale being conditioned by an amount of purchases of at least 100,000 F, and qualitative discounts on invoice for a total of 17%; that, by a letter of June 21, 2001, the company Sony France proposed to deliver video projectors to the company Concurrence by granting it a total of discounts on invoice of 19.5%, that is to say the totality of the qualitative discounts for 17% , to which is added the first rate of the quantitative discount, ie 1%, even though the company Concurrence does not meet the conditions of access to benefit from it, and a financial discount of 1.5%;

Considering that the implementation of these new scales cannot constitute, in itself, a practice prohibited by the Commercial Code, since the conditions for obtaining the discounts and rebates which appear therein do not exclude distributors who would be ready to provide the services in question, that they are defined objectively and are not applied in a discriminatory manner and that they have neither the object nor the effect of limiting the freedom of traders to determine, independently , their resale price policy;

Considering, in the first place, that the general conditions of sale or the cooperation agreements of the company Sony France do not contain any provision having for object or which could have the effect of harming competition; that no element of the file allows to consider that these conditions would be applied in a discriminatory way; that the representative of the company Concurrence, moreover, explained, during the meeting, that he was not contesting the new conditions, in themselves, as to their nature and principle, but the fact of not being able to reflect part of these conditions in its selling prices, namely the deferred discounts and the value of the services invoiced by the distributor;

Considering, in the second place, that it does not appear that the distributors of Sony products are prevented or limited in their right to pass on, in order to establish their resale price, the discounts or bonuses to which they are entitled, that is, that is, those for which the principle is established and the quantifiable amount; that nothing in the file indicates that, in practice, the benefit of discounts is withdrawn if they are passed on for the benefit of consumers; that in addition, nothing is opposed to what deferred rebates are granted at varying rates as and when the corresponding thresholds are reached;

Considering, thirdly, that it is common ground that the company Competition benefits, at variable rates according to the ranges of products, discounts on invoice provided for in the scales; that it has the possibility of obtaining remunerations on additional invoice as well as the mention on the invoice of deferred rebates when the thresholds which give entitlement are reached; that consequently, it is not demonstrated that the company Sony France would have reduced the remunerations granted to the company Competition so as to impose a minimum level of margin or price of resale; that on the contrary, it appears that the situation of the company Concurrence is unchanged, even improved, the new scales allowing it to have access to levels of remunerations comparable or equal to those it obtained previously;

Considering, finally, that the file does not contain any element allowing to presume that the definition by Sony France of its new general conditions of sale had the effect of leading to an increase in the prices of its products on the market and of restricting competition between its dealers, even though, urged by a reporter mail to communicate actual prices before and after the 1 st  of April, the company Competition replied on 5 July 2001, that it it was not possible to meet this requests, in view of the extent of the documents to be collected, when it was open to it to provide a representative sample of these prices;

On resale to companies and the allocation of the logistics discount

Considering that on the occasion of the launch by the company Competition, in July 2000, of a sales activity on the Internet, the company Sony has agreed to deliver directly to the customers of the company Competition having placed an order on the Internet; the Sony Company terminated these direct deliveries from 1 st  May 2001, after informing the company competition by letter of 14 April 2001 in these terms: “It is time to end this exceptional regime we have provisionally set up for you to develop a new sales system “  ; that the company Competition exposes that this measure was taken by retaliation because of the low prices it offered on the Internet, without this assertion being supported by any evidence;

Considering that the company Concurrence cannot claim to maintain a derogatory delivery regime that the company Sony has not granted to any other of its customers; that in any event, it is free to continue to offer products at low prices on the Internet, either by taking charge of the deliveries itself, or by having them carried out by a carrier chosen and paid by it, or again, by offering the customer to come and collect the product at his store; that, in the event that it would ensure delivery to the customer, it would have access to the logistics discount of 3% provided for in the general conditions of sale of the company Sony, the clause relating to this discount providing that it is awarded in case of actual delivery to the customer; that the Concurrence company cannot demand payment of this remuneration,

Considering, finally and in addition, that the turnover excluding taxes of the company Concurrence generated by this activity is low compared to its overall turnover, since it amounted to 451 KF in January 2001, 345 KF in February, 421 in March KF, KF 141 in April, 185 in May and 185 KF KF in June, representing 4.1% of its turnover from 1 st  half of 2001 (41 735 KF HT); that in addition, the drop in sales by this company to businesses was observed from February (- 23% compared to January) and was accentuated in April (- 66% compared to March), ie before the end of direct deliveries by Sony, while conversely, we see a recovery in these sales after this date (+ 31% in May and June compared to April); It follows from these findings that lower corporate sales can be attributed to the cessation of direct deliveries by the company Sony France as of 1 st  May 2001;

On the common brand clause

Considering that with regard to the products of the audio-video range, the scale established by Sony for the year 2000 provided for, for the application of the quantitative turnover discount, the possibility of consolidating the turnover. business of distributors with a common brand; that this clause was worded as follows: ”  The turnover taken into account is the turnover of each billing point, or when the distributor belongs to a group implementing a common policy under a single commercial name , the turnover of the group as a whole. ”  ; that in the scale of 1 st  April 2001, the wording of this clause has been amended as follows:– the implementation of this policy is likely to enhance the brand image of Sony products as well as their resale to consumers. “;

Considering that the Court of Cassation, in a judgment of April 18, 2000, rendered on the appeal brought by the company Concurrence against a judgment rendered on October 29, 1997 by the Paris Court of Appeal for the benefit of the company Aïwa France, retained that by rejecting the request of the company Competition tending to contest the legality of the centralization discount provided for in the scale of the Aïwa company, on the grounds that ”  this discount is granted to any professional who performs a centralization for at least thirty points of sale grouped under a common brand and that this clause remunerates the services rendered to the seller by avoiding too great a dispersion of its administrative operations and its stocks “ , the court of appeal, which had not sought “in what way this advantage constituted a specific service offered only by distributors grouped under a common brand, enhancing the distribution network of the Aïwa company and by repercussion the image of its products , (…) “had not legally justified its decision;

Whereas the company Concurrence maintains that the clause of the new Sony scale creates unjustified discrimination in favor of resellers operating under a common brand and does not meet the requirements of the judgment of the Court of Cassation which it cites in support of his request ;

But considering that it emerges from reading the aforementioned clause that access to the quantitative scale by consolidation of turnover is not reserved only for resellers placed under a common name; that indeed, on the one hand, this consolidation is offered not only to resellers belonging to a grouping, but also to distributors having several points of sale; that, on the other hand, the use of the adverb “in  particular  ” and the indication of criteria other than that of the common sign make it possible to consider that this criterion is neither exclusive nor essential, in order to obtain the corresponding discounts; that, moreover, the society Competition has access, since a discount of 5.5% is granted to him on this head out of a possible total of 6%;

On the economic situation of the company Competition

Considering that the turnover of the company Concurrence amounted for the year 2000 to 74,726 KF, an increase of 53% compared to 1999; that its current result reached 14,169 KF, that is to say 19% of the turnover against 17.9% in 1999 and 13.7% in 1998; that its sales increased by 69% in April 2001 compared to April 2000, by 23% in May 2001 compared to May 2000, by 49% in June 2001 compared to June 2000 and by 33% over the whole of the 1st semester 2001 compared to the first semester 2000; that it announces that its purchases with the company Sony should pass to approximately 90 MF in 2001, against 67 MF in 2000; that consequently, the company Concurrence can only validly support the new scales implemented by the company Sony France from 1April 1, 2001 would have a negative impact on its activity, and in particular that they would result in diverting consumers from its brand, on the grounds that it would no longer be able to offer them competitive prices compared to its competitors;

On the deadlines for implementing the new scales

Considering that the company Concurrence maintains that it was not informed until late and suddenly of the implementation of the new scales for the 1 st April 2001; that both the documents produced by the company Competition itself and those presented by the company Sony show that the information on the new conditions and the negotiations of these conditions with the company Competition began in January 2001 and continued until May and June 2001; that in any event, in view of the data relating to the activity of the company Competition as set out above, it does not appear that the application of the new scales has put it in the inability to source products from the Sony brand or to develop sales of these same products;

Considering that it follows from all of the foregoing that the elements produced by the company Concurrence in support of its referral demonstrate that the company Sony France does not hold a dominant position on the various product markets targeted by the referral, that the Société Concurrence is not in a situation of economic dependence on Sony France and that the practices alleged against the latter are not prohibited by Book IV of the Commercial Code; that in the absence of sufficiently convincing elements, it is necessary to apply the provisions of Article L. 462-8 of this code and to reject the referral; that, consequently, the request for provisional measures must be rejected,

DECIDED

Article 1 st  : The referral basically registered under number F 1313 is dismissed.

Article 2: The request for provisional measures registered under number M 282 is rejected.

Deliberated, on the oral report of Mr. Komiha, by Mr. Cortesse, vice-president, chairing the meeting, Mrs. Perrot and MM. Bidaud and Charrière-Bournazel, members.

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