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A professional association that issues recommendations to its members may become a market player and therefore be subject to competition law. When a professional body invites its members to adopt a certain behaviour towards a market player, such as a call not to work with certain databases, it may be sanctioned for anti-competitive practices.
Court of Cassation, Commercial, Financial and Economic Chamber, 13 November 2025, No. 24-10.852
The facts: exclusion of a member and accusations of boycott
The Collectif pour les acteurs du marketing digital (CPA) brings together digital advertising professionals, including those in the email marketing sector, defined as the use of databases for sending electronic advertising campaigns.
In 2014, Snake Interactive joined the CPA and signed the Email Marketing Charter, designed to promote best practices in data protection and compliance.
In 2021, believing itself to be the victim of anti-competitive practices, Snake Interactive sued the CPA for:
– cancellation of its decision to exclude it,
– cessation of an alleged organised boycott,
– compensation for its loss.
The Paris Court of Appeal (24 November 2023) rejected all of the claims on the grounds that the CPA does not engage in any economic activity and that this body is therefore outside the scope of competition law.
The question raised to the court : can a professional body be considered an economic actor?
According to the Court of Appeal, the CPA merely informs, advises and defends the professional interests of its members — a purely institutional role, unrelated to any production, distribution or service provision activity.
Snake Interactive argued, however, that:
– the CPA operates in the online advertising market, more specifically in the email marketing segment;
– it called on its members not to work with certain databases operated by Snake Interactive;
– such an instruction constitutes a specific intervention in the market, which may fall within the scope of Article L. 420-1 of the Commercial Code.
Is a professional association that influences the economic behaviour of its members exempt from competition law?
The decision of the Court of Cassation
The Court of Cassation overturned the appeal decision on two points.
The commercial chamber censured the appeal decision because Snake Interactive had precisely defined the market in question: the French Internet advertising market, of which email marketing is an identified sub-sector. The Court of Appeal, which had asserted the contrary, had its decision censured on this first point.
The Court ruled primarily on whether or not competition law applies to a professional association.
It ruled that:
“ when a professional or trade union organisation, going beyond its mission of providing information, advice and defending professional interests entrusted to it by law or by its members, intervenes in a market through acts that invite its members to behave in a certain way in that market, the provisions of Article L. 420-1 of the Commercial Code are applicable to it. ”
It is therefore irrelevant whether the association itself offers services. It is primarily necessary to determine its influence on the market through its recommendations, charters or instructions.
The Court of Appeal should therefore have investigated whether the CPA had:
– issued boycott instructions,
– asked its members to stop working with Snake Interactive,
– or promoted a certain method of selecting partners in email marketing.
The judges therefore had to investigate these issues in order to reach a decision.
Practical effects of this decision,
This decision confirms that professional associations can influence a market by guiding the economic behaviour of their members.
These groups can become undertakings within the meaning of European competition law.
These groups or associations may therefore be subject to the protective rules of competition law.
Professional charters, even if they are not apparently binding, can be used to organise a boycott, modulate market access or influence competition.
This pragmatic decision provides better protection for healthy competition in the market.
It would obviously have been easy to engage in anti-competitive practices within this type of association or group in order to protect certain players at the expense of others while attempting to circumvent competition law.
Sectoral associations must carefully consider the scope of their communications, avoid any calls for exclusion or targeted recommendations, and ensure that their charters do not become tools that undermine free competition.
Article written by Olivier VIBERT
Kbestan, Law firm in Evreux and Paris