3
Prohibited practices that approved consumer associations can refer: cartels, abuse of dominance (including economic dependency), and predatory pricing.
Irrebuttable
Once a competition authority decision establishing the practice is final and beyond challenge on that point, the practice is irrebuttably established for any follow-on antitrust class action.
Mandate
Local consumer associations affiliated with a national approved association can only refer a case if specifically mandated to do so by the national association.

Two Distinct Powers: Referral and Advisory Opinion

The Code de commerce gives approved consumer associations two separate competition-related powers in relation to the Autorité de la concurrence, each serving a different purpose:

Power 1: Referral of Anticompetitive Practices Art. L 462-5, II C. com.
✓Available to nationally approved consumer associations
✓Refers specific suspected anticompetitive practices for investigation and potential enforcement decision by the Autorité
✓Covers cartels (Art. L 420-1), abuse of dominance or economic dependency (Art. L 420-2), and predatory pricing (Art. L 420-5)
✓A successful referral leading to a final decision creates the irrebuttable prior finding required for an antitrust class action (Art. L 623-24 C. consom.)
~Local affiliated associations may only refer if mandated by the national association
Power 2: Advisory Opinion Request Art. L 462-1, al. 2 C. com.
✓Available to nationally approved consumer associations
✓Allows the association to request an opinion on any competition question — not limited to specific infringements or the three practice categories
✓Useful for policy engagement, sector monitoring, and flagging structural competition concerns before an infringement crystallises
✓The opinion is not a binding enforcement decision but shapes the regulatory landscape and can signal areas of future investigation
✓A mechanism for constructive engagement with competition policy beyond litigation

The Three Referable Practices

The referral power under Art. L 462-5, II covers the anticompetitive practices prohibited by Arts. L 420-1, L 420-2, and L 420-5 of the Code de commerce:

Practice 1 Art. L 420-1 C. com. Cartels (Ententes Illicites) Agreements, concerted practices, and decisions by associations of undertakings that have as their object or effect the prevention, restriction, or distortion of competition in a market. The French provision mirrors TFEU Art. 101 and is applied in tandem with EU competition law where trade between Member States may be affected. Price-fixing, market-sharing, bid-rigging, and output restriction are the classic forms. Consumer harm is typically an overcharge passed down the supply chain to end consumers.
Practice 2 Art. L 420-2 C. com. Abuse of Dominant Position or Economic Dependency The abusive exploitation of a dominant position on a market, or of a state of dépendance économique. The economic dependency concept is a distinctly French provision that goes beyond the EU standard (TFEU Art. 102) and can affect suppliers or distributors dealing with powerful buyers or sellers. Forms include excessive pricing, exclusionary practices, tying, and discriminatory terms. Consumer harm may arise directly (excessive prices) or indirectly (exclusion of competitive alternatives).
Practice 3 Art. L 420-5 C. com. Predatory Pricing (Prix Abusivement Bas) Prices abusively low relative to production costs, aimed at eliminating competitors or preventing market entry. A purely domestic provision with no TFEU equivalent, applicable to practices within France that do not affect trade between Member States. Consumer harm in predatory pricing cases is typically indirect: the short-term price benefit may be outweighed by longer-term harm once competitors are driven out and the predator can raise prices.

Who Can Refer: National Associations and the Mandate Rule for Local Associations

National Approved Associations Can Refer Directly The seventeen nationally approved consumer associations can refer any of the three covered practices to the Autorité de la concurrence directly, without any prior mandate or authorisation. The referral power belongs to the national association by virtue of its approval status under Art. R 811-1 of the Code de la consommation (minimum 10,000 members; independence from professional activity). They can also request advisory opinions under Art. L 462-1, al. 2 without any additional condition.
Local / Affiliated Associations Can Only Refer if Mandated A local consumer association affiliated with a nationally approved association can only refer a case to the Autorité de la concurrence if it has been specifically mandated to do so by the national association (Conseil de la concurrence, décision n° 91-D-42 du 22 October 1991). The referral power at national level belongs to the national association and is not automatically devolved to local affiliates. A local association that files a referral without the national association's mandate does not have standing to refer.
Why the Mandate Requirement for Local Associations Matters for Businesses

The mandate requirement means that a local consumer association operating in a specific region or sector cannot unilaterally trigger competition authority proceedings against a local operator without the backing of one of the seventeen nationally approved associations. This provides a degree of protection against poorly-resourced or politically motivated local referrals. However, nationally approved associations — particularly UFC-Que Choisir and CLCV, which have extensive local networks — may choose to mandate their local affiliates to act in relation to specific regional market concerns, effectively delegating the referral power in targeted situations.

The Strategic Link: From Referral to Class Action

The competition authority referral power and the antitrust class action are legally distinct but strategically connected. The two-step mechanism works as follows:

How a Consumer Association Referral Can Lead to a Class Action
1
Association refers practice to the Autorité de la concurrence

Under Art. L 462-5, II C. com., a nationally approved association refers a suspected cartel, abuse of dominance, or predatory pricing practice. The Autorité then investigates independently using its own enforcement powers.

2
Autorité renders a decision finding the practice

The Autorité concludes its investigation and issues a decision finding that the practice occurred. The professional may appeal. Exhausting appeals can take years.

3
The practice-establishment part of the decision becomes final

Once the part of the decision finding the practice can no longer be challenged (even if appeals on the fine or procedure are still pending), the condition for an antitrust class action is met (Art. L 623-24 C. consom.).

4
The practice is irrebuttably established

The prior decision makes the anticompetitive practice irrebuttably established (réputée établie de manière irréfragable) for the purposes of the class action (Art. L 481-2 C. com.). The class action court cannot re-examine whether the infringement occurred.

5
Association files antitrust class action within 5 years

The approved association files the class action summons (Art. L 623-24 C. consom.) within 5 years of the decision becoming final on the practice-establishment part (Art. L 623-25). The class action focuses only on consumer harm and compensation — not on whether the practice occurred.

The Referral Creates the Enforcement Record That Enables Class Action Compensation

A business that is the subject of a consumer association referral to the Autorité de la concurrence should understand from the outset that the competition enforcement proceedings are not the full exposure picture. A finding of infringement — however long the appeal process takes — will eventually create the irrebuttable prior decision that unlocks a five-year window for a consumer antitrust class action. The administrative fine is one cost; the consumer compensation obligation triggered by the irrebuttable finding may be a significantly larger one. Both should be factored into the risk assessment from the moment a referral is received.

The Advisory Opinion: A Policy Engagement Tool

Separately from the referral power, approved consumer associations may request an advisory opinion from the Autorité on any competition question (Art. L 462-1, al. 2 C. com.). The breadth of this power — "any competition question" — is significantly wider than the referral power, which is limited to the three specific infraction categories. An association can use the advisory opinion request to ask the Autorité to examine sector-wide competitive dynamics, new market developments, or structural concerns that have not yet crystallised into specific infraction conduct.

The advisory opinion is not a binding enforcement decision. It does not create the prior decision required for an antitrust class action. But it serves several purposes in the consumer protection ecosystem:

  • It places a sector or practice on the Autorité's radar, which may lead to an own-initiative investigation
  • It generates publicly accessible analysis of competition conditions in a market, which associations can use to inform their advocacy and litigation strategy
  • It demonstrates to regulators, legislators, and the public that the association is actively monitoring the market
  • An opinion that identifies specific competition concerns may precede a formal referral once the conduct becomes more defined
Advisory Opinions vs. Referrals: Two Different Strategic Instruments

An association that suspects anticompetitive conduct but does not yet have sufficient evidence to support a well-founded referral may choose to request an advisory opinion first. This allows the Autorité to examine the market structure and competitive dynamics without triggering a formal investigation. If the opinion identifies concerns consistent with the association's suspicions, the association can then file a referral grounded in the Autorité's own analysis. For businesses, a sector-level advisory opinion request from a major consumer association should therefore be treated as a potential precursor to a formal referral — not merely as an academic policy exercise.

What Businesses Need to Know
Nationally approved consumer associations can refer cartels, abuse of dominance (including economic dependency), and predatory pricing practices to the Autorité de la concurrence under Art. L 462-5, II — with no prior legal proceedings required and no minimum threshold of consumer harm to demonstrate.
Local consumer associations affiliated with a national approved association can only make a referral if specifically mandated to do so by the national association. A referral from a local association without a national mandate lacks standing.
A consumer association referral that results in a final infringement decision creates the irrebuttable prior finding required for an antitrust class action. Businesses should assess their class action compensation exposure from the moment a referral is received, not only after the enforcement proceedings conclude.
The five-year class action limitation period runs from the date the infringement-establishment part of the decision is final, not from when the conduct ended. A referral filed today may create class action exposure that crystallises many years from now.
The advisory opinion power under Art. L 462-1, al. 2 is broader than the referral power: it covers "any competition question." An advisory opinion request from a major consumer association in a sector where your business operates should be monitored closely — it may be a precursor to a formal referral.
The competition authority referral and the antitrust class action are legally distinct but strategically linked. A coherent response to a referral should address both the administrative enforcement dimension and the potential follow-on class action dimension simultaneously.
Unlike the standard consumer class action, where the court must determine liability from scratch, the antitrust class action court starts from a finding the professional cannot contest. This shifts the entire focus of the class action proceedings to the quantum of consumer harm — making harm quantification the primary strategic battleground.
Has Your Business Received a Competition Authority Referral from a Consumer Association?

A referral to the Autorité de la concurrence by a consumer association is the start of a process that may ultimately lead to both a competition fine and a consumer class action for compensation. Understanding the full exposure — and beginning to quantify it — from the outset is essential for any effective response.

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This article is for general information and educational purposes only. It does not constitute legal advice. The information reflects the state of the law as updated to April 2024. Always seek qualified competition and consumer law advice in relation to specific proceedings.