OPINION OF THE ADVOCATE GENERAL ON ENDIVES, FINALLY!

In the context of the 2007 dispute between the French Competition Authority and the association of producers selling endives as well as other operators, the French Court of Cassation filed a complaint with the Court of Justice of the European Union (CJEU) about the capacity of these organisations, producers, associations of producers’ organizations and other operators to consult on prices or quantities marketed.

In the opinion, which has been delivered today, the Advocate General observes that the common rules on competition law do not apply to collective bargaining practices of selling prices (or single selling prices) conducted by a producer organization or an association of producers’ organizations, whose objects include the marketing of the products concerned. The same applies to consultation on quantities to be placed on the market and to the exchanges of strategic information.

In other words, a PO or PDO is deemed to have the same rights as a commercial enterprise under private law ; A PO or a AOP is indeed an entire legal entity.

In this context, the common law of competition must apply to consultations on prices and quantities to be marketed or to exchanges of strategic information between separate legal entities – hence, between different POs or different AOPs – which are therefore prohibited.

Moreover, it is also prohibited to fix a minimum price between producers, either between different POs (or AOPs) or within a PO (or AOP).

This official opinion from the Court of Justice of the European Union is a positive signal for POs and AOPs:

– On the one hand, it confirms the orientation of the legislators taken during the CAP Reform of 2013 on the specific law applicable to POs and AOPs in the agricultural sector, namely the provisions of the CAP prevailing over common rules of law competition.

– On the other hand, this opinion also confirms the EU acquis, prior to the 2013 Reform, and should therefore put an end to the debates on interpretation on this extremely relevant point for the organization of the sectors. It is desirable to have it confirmed by the Court of Justice, since it will make it possible to clarify the existing margins of manoeuvre for POs and AOPs once and for all, and in particular, to avoid substantive divergent interpretations by competition authorities at national level.