This question has been addressed by the French national competition authority, the Conseil de la Concurrence, in a recent case (see decision n. 08-D-08 of 29 April 2008). The question arose when Editions Gisserot, a publisher active in the field of tourist guides filed a complaint with the Conseil de la Concurrence about an alleged abusive conducts carried out by the Centre des Monuments Nationaux (CNM). CNM is a public entity, which is a publisher of tourist guides and manager of a chain of bookshops located inside a number of monumental sites in France. Editions Gisserot and CNM have been since long trading partner, the tourist guides published by the former were sold on the premises of the latter. But since 2006 CNM discontinued selling in its bookshops in Mont-Saint Michel, Carcassone and Cluny the guides of Editions Gisserot to these sites, namely Le Mont-Saint Michel, La cité médiévale de Carcassone and L'Abbaye de Cluny.
Editions Gisserot claimed that it was able to sell the above books only at CNM bookshops in Mont-Saint Michel, Carcassone and Cluny. Thus, these bookshops should be considered as essential facility and, accordingly, it asked for access to them.
The test to qualify a facility as an essential is a two-limb test, its parts being: first, essentiality, in the sense that a facility is not essential when it cannot be duplicated by reasonable means; second, the relevance of access for competitors, in the sense that a facility is essential when without access to it the claimant cannot carry out its economic activities.
The Conseil de la Concurrence in this case focused only on the second element of the test. Unsurprisingly, the CNM bookshops failed at the test.
In Mont-Saint-Michel and Carcassone there exist alternative retailers through which Editions Gisserot can commercialize its books. This is clearly evidenced by the high percentage of the volume of sales of rivals of Editions Gisserot that is generated by other traders than CNM.
The same conclusion was reached with relation to Cluny, though the market conditions are here a bit different. In Cluny there exist only a small number of retailers. Nevertheless, they constitutes a different channel from CNM bookshops for the sale of the books. This suffices to rule out that the local CNM bookshop is an essential facility.
The Conseil de la Concurrence did not assess the first element of the essentiality test as it was superfluous in light of the above findings. In any event, it is difficult to think of bookshops as a facility that cannot be replicated at reasonable costs.
The vertical integration of the CNM organization, which combine publishing and book retailing activities was also examined as it was likely to negatively affect the retail market for tourist guides. The lack of any legal separation between its retailing and publishing activities may influence the choice of which books sell at its bookshops. It may assumed that these choice may favour the CNM own publishing division and discriminate against rival publishers.
However, the Conseil de la Concurrence ruled out that the decision of CNM to discontinue selling the guides of the claimant amounted to a prohibited refusal to deal and reserve to itself the market for tourist guides. In the market for the guides to Mont-Saint-Michel and Carcassone CNM has no dominant position because of its small market shares. CNM has, instead, a dominant position in the market for guides to Cluny. Notwithstanding that, no abuse of dominance was found because the conduct of the respondent has been explained with the necessity of a more efficient allocation of the limited space available on the shelves of its shop in Cluny.
During the proceedings CNM itself admitted that its vertical integration is problematic from the viewpoint of competition law for the above reason. In order to remedy this situation in the course of hearing CNM committed to take the necessary measures. These commitments have been voluntarily adopted by CNM and not imposed by the Conseil de la Concurrence with the commitments procedure laid down by Article 464-2 of the French Code de Commerce. Therefore, the commitments are not binding on CNM.
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