Yesterday, our expert Cyril Hariton took part in the Concurrences conference “Distribution, competition & restrictive practices” in Paris.

Cyril’s panel focused on current hot topics in the distribution sector for in-house counsels, in particular their role in mergers and distribution cases, as well as in damage actions, RPM, the risks of trade association memberships. The panel benefited from the contributions of Hanna Danwall (Carlsberg Group), Ariane Oesterreicher] (Veolia), Frédéric de Bure (Cleary Gottlieb Steen & Hamilton LLP), and the moderation of Rafael Amaro (Université de Caen Normandie).

In relation to mergers, Cyril highlighted that distribution cases often involve effects in local areas around parties’ distribution assets and that competition authorities typically assess market power within these local areas by counting the number of competitors located within the catchment areas of each of these assets, sometimes weighting them by volumes or revenues. There is, in fact, no realistic economic justification linking such metrics to market power or merger effects. Conversely, there exist alternative ways to address local market power in a transparent and rigorous manner. Given the competition authorities’ entrenched decisional practice, Cyril stressed the importance to come early in the process with rebuttal arguments along with an alternative assessment, consistent with economic theory and the facts of the case.

As regards RPM, Cyril noted the Super Bock judgement from the Court of Justice of the European Union clarified the law. The door is now open, though likely rusty, to substantive arguments but companies should be well prepared as old habits die hard. It is therefore of primary importance to reflect with business operatives on the economic context in which they set such pricing practices and on their primary objectives, in order to come forward to the authorities with an economically and factually consistent and documented narrative, in particular on the pro-competitive aspects of the practice as well as its capability to harm.

Finally, on damages, a consensus emerged from the panel on the need to get well prepared internally, in particular regarding data retention. Cyril noted that relevant data can hide where you don’t suspect it, and a good internal communication channel is often instrumental to identify it.

Congratulations to Concurrences for yet another interesting conference on important topics, and to all the other participants for sharing their views and improving the debate.