Generous but especially antitrust analysis which is made by the competition Council

To protect itself from an unwanted takeover, some companies had imagined the introduction in their statutes or contracts for their leaders, "poison pills", providing for the payment to premiums in an amount to deter potential purchasers... Bouc-Bel-Air, in short is a near system an inventive crèches management association had put in place: as the leaders of the association could hardly receive such premiums, is the employees that it was imagined to pay. Generous, but especially antitrust analysis which is made by the competition Council.

Mayor of Bouc-Bel-Air having decided to open the service contract to competition "the management of three multi-accueil of childhood", the goat association' cabbage had planned in terms of riders to the contracts of the employees the payment of a bonus of 100,000 euros therefore that the association would increase the cap of 60 employees, a total of 3.300.000 euros, believing that the exceedance of the threshold would remove any "human dimension" to the association. The real motives of the association are therefore quickly emerged, aimed at preventing another structure to the market, article l. 122 - 12 of the Labour Code impose the resumption of staff by the successor, under the same contractual conditions.

The "poison pill" had had the opportunity to produce its effect, another association, awarded the contract, having finally terminated the contract with the municipality following the discovery of the rider, and many other potential candidates having indicated that they renounce bid if rider said was maintained, thus justifying his measures by the Council of competition.

The competition Council is certainly not ruled definitively, but he found probable the existence of an abuse of a dominant position. One might be surprised at the idea that the association the goat ' cabbages, ensuring the management of nurseries of Bouc-Bel-Air is in a position of dominance. But the Council be recognized "".

Especially, and this is a remarkable point of the decision of the Council since it augurs a new configuration of a dominant position, the Council notes that it does "has not yet ruled on the possibility for a company to an anti-competitive abuse on the renewal of a market, simply because its position of incumbent market running out" but that "this possibility must".", however, be admitted as an abuse of a dominant position may be committed in a related market on which the dominance is detained and two successive public contracts on the same benefit can be considered as related markets".

Should be seen as a nexus of the third kind, "chronological", after the connection of product markets and geographic markets linkage, and retain the possibility of abuse of a current dominant position on a non-allocated yet non-existent since market Of connection is the use of the notion only required In any event recipients of public companies must take into consideration the probability that the competition Council "endorses" in its decision "at the bottom" the position envisaged in it.

Another issue raised by this surprising decision: a contract of employment may be the support of an agreement The Council questioned the "freedom" of will issued by workers, in a State of subordination: "It is difficult to characterize a relationship which is binding on an employer to his employee, placing it in a position of subordination which makes uncertain the application of the notion of agreement of will within the meaning of the law of the agreements the agreement."

Daring with regard to the abuse of dominant position, the Council seems more retained under agreements. Because it appears that the conclusion of the endorsement is the meeting of two minds: prevent that another actor would be awarded the contract for management of crèches in their commune. Is it not more, for employees, the condition of an autonomous activity in a market that is lacking