On 6 April 2017, Advocate General Wahl ("AG Wahl") delivered a non-binding opinion in a case concerning the question whether the agreements, decisions or concerted practices of agricultural producer organizations ("POs") and their associations ("APOs") may be considered to constitute a violation of Article 101 of the Treaty on the Functioning of the European Union (TFEU).
In 2007, the French competition authorities reveled practices that they considered anticompetitive in the endive production and marketing sector. Those practices, implemented by POs, APOs and various bodies and companies, consisted of the coordination of the price of endives and the quantities of endives placed on the market as well as the exchange of strategic information. The defendants appealed the French Competition Authority's decision before the French courts contesting the fine imposed on them. The defendants argued that their practices did not fall within the scope of the prohibition of anticompetitive agreements, decisions and concerted practices under EU law. According to the parties, POs and APOs are tasked with stabilizing producer prices and adjusting production to demand and therefore the practices deemed anticompetitive by the French authorities were in fact justified. The French court has made a request for a preliminary ruling to the Court of Justice of the European Union (CJEU) to clarify the issue.
In his opinion, AG Wahl notes, that the POs and APOs have, among other tasks, the general objective of adjusting production to demand, reducing the costs of production and stabilizing producer price. Thus, the POs and APOs are, in essence, forums for collective concertation. Since the objectives of the Common Agricultural Policy (CAP) take precedence over the objectives of competition policy, certain actions taken by the POs and APOs, which are strictly necessary for the fulfilment of their tasks, may escape the application of competition law.
According to AG Wahl, for the practices to escape the application of competition law, it must be established that they have been adopted within a PO or an APO actually in charge of managing the production and marketing of the product concerned. Only such practices are comparable to those adopted within a company or group presenting itself, on the market in question, as a single economic entity and such internal practices are not subject to the application of competition law. On the other hand, practices occurring between economic entities which are supposed to be independent, for example between POs, must be subject to the rules of competition.
AG Wahl goes on to examine the facts relating to the alleged cartel on the French endive market. First of all, as regards to the concertation on the prices of endives, AG Wahl took the view that a policy of fixing a minimum price between producers cannot escape the prohibition of anticompetitive practices, whether that policy is determined between different POs/APOs, or within the same PO or APO. As regards the concertation on the quantities placed on the market, AG Wahl took the view that such concertation may, where it is genuinely intended to regulate production in order to stabilize the prices of the procuts concerned, escape the application of competition law. Lastly, as regards the exchange of strategic information, AG Wahl considers that the tasks assigned to the POs and APOs necessarily involve exchange of such information internally, with the result that the competition rules will generally not be applicable to actions taken within a PO/APO.