In a decision of December 30, 2013, the French Competition Authority (“FCA”) confirmed the validity of practices by the French authorities regarding the digital publication of companies’ legal information.
In March of 2008, Mercure, a service provider of on-line corporate formalities, complained to the FCA that “Infogreffe” had allegedly abused its dominant position and Mercure’s economic dependence by preventing the latter from offering its clientele paperless services similar to those offered by Infogreffe.
Infogreffe is an economic interest group (“GIE”) whose purpose is essentially to develop and administer IT tools to manage and circulate legal information to the public. Infogreffe is made up of the clerks of all French commercial courts whose public service mission is to collect data to be registered on legal publicity registers1 and provide information and copies of the data.
Practically speaking, Infogreffe centralises the communication of French companies’ and branches’ economic and legal information. The service is widely used by companies and legal professionals.
In March of 2008, two other companies, Coface-Services (“Coface”) and Altares-D&B Holding (“Altares”), engaged in the use and processing of data issued from legal publicity registers in order to publish analysis of the financial status and solvency of companies, complained to the FCA that the creation of Infogreffe reflected an alleged cartel among the clerks of the Commercial Courts. The plaintiffs argued that Infogreffe had immediate exclusive access to the relevant information for free without the need to obtain a commercial use license from the INPI. Coface and Altares also contended that the prices charged to them by Infogreffe were excessive, and that Infogreffe and the National Intellectual Property Institute entered into an deal in April 2009 to rationalise the production and communication of corporate economic and legal information.
The FCA rejected the complainants’ arguments on the existence of a cartel among the clerks of the commercial courts and on the alleged excessive prices applied. It held that the remuneration of the clerks and fees for each transmission of document were fixed by statute as a direct consequence of legal provisions (Annex 7.5 of Article R.743-140 of the French Commercial Code et seq.).
The FCA also examined the potential restrictive competitive practices which could arise from the contract entered into between Infogreffe and the INPI. It held notably that the participation of Infogreffe members in the INPI license committee was not per se a violation of competition law, since the purpose of the INPI license committee was only to verify whether information acquired was destined to be used internally or to be processed and sold, and found further that no business- sensitive detailed information was shared.