Étude de cas: l'affaire des parfums (document en anglais)

In a judgment dated June 11, 2013, the “Cour de Cassation”, ended the series of "l’affaire des parfums" by rejecting the appeals of the companies involved, which sought the annulment of the “Conseil de la concurrence” decision.

As a reminder, the “Conseil de la concurrence”, issued March 14, 2006 a decision by which it sanctioned 13 companies operating brands of perfumes and luxury cosmetics for having agreed with their distributors selling prices for the consumer, and for the same facts, pronounced fines against three national chains.

Between the years 1997 and 2000, companies operating brands of perfumes and luxury cosmetics have agreed with their network of distributors to stop, for each brand product, any competition between retail dealers of these products.

Each supplier of perfumes or cosmetics gave the "suggested retail price" to distributors as well as the maximum rate of discount they were allowed to practice in order to standardize up retail prices of products offered for sale.

Each agreement organized by the supplier was accompanied by the establishment of a "price police" consisting of controls prices, pressures and threats of retaliation against commercial distributors that refused to apply the prices imposed by the brand.

Both national and European jurisprudence allows brands whose image is associated with luxury to closely monitor the situation of outlets that distribute the brand and check the quality of the presentation of their products to ensure their development: that is the selective distribution, which leads to a careful selection of outlets of the brand.

But the same law does not allow brands to impede the freedom of every selected distributor to set its margins and therefore the retail price. Indeed, this freedom belong to the final consumer as it allows him to take advantage of competition between outlets of the same brand and get better prices. In practice, this lack of competition organized by the agreement between the producer and its distributors allows everyone to grow and to share the surplus obtained at the expense of the consumer.

Practices that have the object and effect of preventing the fixing of prices by the market forces are constitutive of "hardcore restriction" of competition under the guidelines of the European Commission of 13 October 2000 on vertical restraints. Those facts are serious in nature because they result in forfeit to the offenders the benefit that the consumer expect from the competition between dealers of the same brand products.

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