To quote this paper: N. BUCCINO, “Professional Associations: Between Freedom of Expression and Competition Law”, Competition Forum, 2026, n° 0079 https://competition-forum.com. 

Competition law, in several of its dimensions, may encounter external normative considerations that exceed its immediate economic rationale. Among these, the notion of freedom occupies a central place. Recognised as a fundamental principle in contemporary democratic systems, it proves particularly complex to articulate with competition law, a field characterised by the plurality of individual interests corresponding to the diversity of market actors. Trade union organisations are not exempt from this tension.

In a decision of 12 November 2020[1], the French Competition Authority (Autorité de la concurrence – FCA) had sanctioned the National Confederation of Dental Unions – subsequently renamed Les Chirurgiens-Dentistes de France (CDF) – for boycott manoeuvres “directed against care networks (Santéclair) and intended to hinder their functioning.” The sanctions were severe: “a total of €4,013,000 imposed on five departmental councils of the Dental Council and two trade union federations.”[2] The union, contesting this decision, brought an appeal before the Paris Court of Appeal[3]. The appellate judges upheld the FCA’s findings as to the characterisation of the boycott and its sanction, holding that the practice was anticompetitive both by its object and by its effects.

The appellant challenges here the characterisation of a boycott, arguing that the actions identified as anticompetitive by the trial judges were justified by a higher interest: that of protecting the profession and its ethics. CDF further adds that its militant actions were “intended to highlight the threat that such networks” represented, which, in its view, justified the practices and directly excluded the application of Article 101 TFEU. Accordingly, the appellant relies on Article 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms[4], insofar as it protects freedom of association and trade union freedom, which the Court of Appeal is said to have infringed by sanctioning CDF for anticompetitive agreements. Finally, it justified its conduct as a response to certain alleged practices of the care networks – such as diversion of patients and data, personal solicitation, and breaches of medical confidentiality.

Several questions arise before the Court of Cassation and may be summarised as follows: can trade union freedom and consumer protection justify conduct contrary to competition law, and to what extent may the prohibition of anticompetitive agreements be set aside in the name of this fundamental right?

The Court of Cassation fully upholds the reasoning of the appellate judges and dismisses the appeal in all its pleas. Recalling the substance of the qualification of a restriction of competition by object, the Supreme Court judges agree that the militant motives put forward by the applicants do not in any way justify an infringement of competition law rules, and that trade unions do not escape the vigilance required by such practices.

The analysis must be conducted along two lines: first, the qualification of the boycott attributed to the CDF union (I), which will then attempt to justify itself by virtue of its status (II).

I. The actions of the CDF union, constituting a boycott within the meaning of Article 101 TFEU

The inclusion of trade unions and professional organisations within the scope of competition law is first reconsidered (A), followed by the judicial characterisation of the boycott (B).

A. Trade unions within the scope of Article 101 TFEU: CFD sanctioned as an anticompetitive association of undertakings.

The Court of Cassation recalls that trade union organisations do not escape the characterisation of anticompetitive restraints, notably when it states:

“An action undertaken by a professional organisation must be regarded as a decision by an association of undertakings within the meaning of Article 101(1) TFEU where it seeks to induce its members to adopt a specific form of conduct in the context of their economic activity.”[5]

Indeed, while competition law is by nature intended to apply to undertakings (defined by the Höfner judgment of 1991[6] as any entity engaged in an economic activity, regardless of its legal status and method of financing), the Competition Authority directly identified the confederation’s conduct as anticompetitive: “Trade union practices constitute, in themselves, interventions on the market.” It is apparent, in the same decision challenged by the judgment under consideration, that the Authority explicitly sought to include professional trade unions within its analysis, notably by recalling certain provisions of the Labour Code[7] providing for their legal personality, from which their liability follows.

Furthermore, still in the decision of 12 November 2020, the French Authority specified the sanctions to which an entity that is not an undertaking may be exposed when it adopts prohibited conduct: the maximum fine incurred is €3 million, as opposed to a sanction of up to 10% of the turnover of an undertaking. (French Competition Authority (Autorité de la concurrence – ADLC), Decision No 20-D-17 of 12 November 2020)

This momentum was corroborated by a subsequent judgment of the Court of Cassation, which sanctioned under Article L.420-1 of the Commercial Code the conduct of a professional or trade union body exceeding its original missions (defined as information, advice and defence of the professional interests entrusted to it by law) by hindering free competition through practices of pressure and threats directed at alleged infringers. Legal scholarship likewise agrees that there are missions to which professional organisations must confine themselves; Louis Vogel, through his Legal Intelligence platform, concludes that such organisations must not “establish internal rules that go beyond the general principle of restraint or lead them to overstep their mission.”[8]

This dynamic is perfectly illustrated by the judgment under consideration: even when defending collective interests such as ethics and the protection of a profession threatened by certain actors, a trade union remains bound by sanctions that, at first glance, concern only undertakings – as evidenced by the references to Articles 101(1) TFEU and L.420-1 of the Commercial Code cited in the judgment. It is therefore necessary to examine the anticompetitive conduct identified.

B. The unanimous characterization by the Competition Authority and the courts: boycott.

In the present case, the Supreme Court confirmed the Competition Authority’s qualification of the conduct as a boycott – and as a practice which, by its very object, infringes free competition in the dental care sector.

The Court relies on its previous case law to characterise the practice. First, it recalls what Article 101(1) TFEU means by an “association of undertakings,” namely the action of a professional organisation seeking to induce its members to adopt a specific form of conduct in the context of their economic activity – a definition given by the Court of Justice of the European Union in its judgment of 19 February 2002, Wouters[9].

Faithful to the methodology and case law of the CJEU, the French Court recalls that not every agreement between undertakings or decision by an association is necessarily prohibited. Indeed, an examination of the legal and economic context is required, as well as of the content of the agreement, in order to determine whether it pursues a legitimate interest. This is a logical application of the CJEU’s progressive tendency to allow certain practices that are prima facie anticompetitive where their effects are not such as to significantly restrict competition. The CJEU judgment of 11 September 2014[10] sets out this solution, requiring a more practical approach to agreements.

In its decision, the French Court of Cassation refers to another fundamental judgment continuing this movement: European Superleague Company[11]. However, the judges limit the application of this case law, and thus the relevance of an economic analysis, when sanctioning the agreement. The boycott practice, according to both the trial and cassation judges, remains anticompetitive by its very object, as it is considered to seriously harm competition, such that no proportionality assessment or justification linked to the context or the aim pursued could reverse this conclusion.

The Court of Appeal had inferred, relying on the findings of the FCA, that this was indeed a restriction by object:

“Accordingly, it follows from all the foregoing that the contested practices amount to a call for a boycott of care networks constituting an infringement by object within the meaning of Articles 101 TFEU and L.420-1 of the Commercial Code.”[12]

The facts complained of consisted of an incitement to reject any affiliation with care networks, and denunciations of alleged legal and ethical shortcomings on their part.

Finally, to conclude this point, it is well established that the characterisation of a boycott leads to the qualification of a restriction of competition by object. In this respect, Pierre Arhel writes: “In particular (and regarded as restrictions by object) are horizontal price-fixing agreements, boycotts and, in the field of public procurement, exchanges of information prior to the submission of tenders.”[13]

II. The justification of practices by invoking trade union freedom: the final refusal of the Court of Cassation.

First, it is necessary to examine how the applicant in the appeal invokes the European Convention on Human Rights in order to justify its acts (A); second, to study the impossibility of such justifications succeeding (B).

A. The invocation by the Union of Articles 10 and 11 of the ECHR

In its reasoning, the Court of Cassation identifies a principle governing the application of the ECHR in this area: where a trade union alleges an infringement of its freedom of expression, the conditions laid down in Articles 10(2)[14] and 11(2)[15] must be examined in order to justify such a restriction of freedom. The Court specifies that these provisions require any limitation on freedom of association and expression to be “prescribed by law, pursue one of the legitimate aims” listed therein, and be necessary to achieve those aims. These legitimate aims, listed respectively in the second paragraphs of Articles 10 and 11 of the ECHR, may be summarised as the protection of public interests such as democracy, national security, public safety, health or morals.

CDF contested before the Court of Appeal, arguing that the limitation it claimed to have suffered was not justified in light of the legitimate aims listed in those provisions. However, both the appellate and cassation courts rejected this line of argument. This approach appears consistent with the Court’s case law: in a judgment of 25 June 2025[16], the Court of Cassation overturned a Paris Court of Appeal decision in the AMD case, which had annulled fines imposed by the Authority notably on grounds of freedom of expression; the Supreme Court recalled that the criteria set out in Article 10(2) ECHR may be interpreted with a broad margin of appreciation – the union having been sanctioned for abuse of a dominant position.

Finally, and above all, the applicant union argued in its grounds of appeal that the appellate judges had infringed Articles 101 TFEU, L.420-1 of the Commercial Code and Article 11 ECHR due to insufficient factual findings. The Court of Cassation responds clearly, in support of the Court of Appeal, that the argument that a statement relates to the “general interest or pursues such an objective, has a sufficient factual basis and a measured character”[17] is not sufficient to exclude the qualification of anticompetitive agreements.

We can observe here a convergence between the two jurisdictions, aimed at preventing the boycott manoeuvres undertaken by the CDF union, despite its reliance on freedom of expression and trade union freedom: the impact on the market is deemed far too significant. It remains, after having seen that reliance on the ECHR was rejected, to examine the substance of the applicant’s arguments and the response of the Supreme Court.

B. The Court of Cassation’s refusal in the face of CDF’s justifications

The applicant’s arguments were based on the union’s claim that it sought to denounce certain practices allegedly carried out by Santéclair in order to preserve the “interests of the profession and of patients”[18] which, according to it, fell within the free exercise of trade union freedom.

In this respect, CDF sought to denounce the threat posed by certain care networks, such as Santéclair, to professional ethics. In essence, CDF sought to transpose into competition law the logic according to which the defence of professional values could legitimise collective action, even when it directly affected market structures. These justifications and the protection of an apparent general interest were, in its view, capable of justifying the call for a boycott while escaping the qualification of an anticompetitive agreement: “The defence of the interests of the profession […] cannot be characterised as an anticompetitive practice.” However, the appeal encountered the strictness of the courts. As noted above, the Court of Cassation confirms the qualification of the conduct as a restriction by object, the seriousness of which cannot be justified.

The Court of Appeal had moreover rejected the applicant’s additional argument that the boycott was justified by several alleged breaches of ethical and competition rules, such that the call for a boycott would merely have been the consequence of those practices. The trade union organisation pointed to alleged conduct such as systematic diversion of patients and health data for commercial purposes, failure to comply with a professional charter, breach of medical confidentiality, and dissemination of misinformation.

The appellate judges recalled – before confirming the validity of the reasoning – that the FCA had found no factual basis for characterising the breaches imputed by CDF to Santéclair, and that:

“Even if this had been the case, such breaches would not have been capable of justifying the union’s conduct, which, through its criticism of care networks, would in any event have been regarded as an intervention on the market.”[19]

The Court of Appeal nevertheless specified that, at the time of the contested maneuvers, there were no elements making it possible to establish the existence of the practices attributed to care networks such as Santéclair. Moreover, the various reports or testimonies submitted by certain practitioners were not such as to justify the implementation of a boycott, nor even to establish that the company Santéclair was guilty of the alleged breaches.

This clearly illustrates the inflexibility of the judicial approach: while such a position may be commendable in terms of strict compliance with competition law, the Courts of Appeal and the Court of Cassation appear excessively rigid, failing to take sufficient account of the broader context and of the potentially protective effects of the practices on consumers. Yet is not competition law, above all, intended to ensure fair conditions for consumers? Pierre Arhel concludes from this ruling that “the union’s actions are assessed solely in light of the criteria set out in Article 101(1) TFEU, even where the protection of freedom of association is invoked,”[20] a conclusion that raises legitimate questions as to the rigidity of this approach in view of the actual role of trade unions.

It follows from these elements, together with the analysis of the anticompetitive nature of the practices by their object and the impossibility of justifying them through the exercise of trade union freedom, that CDF was responsible for a decision by an association of undertakings sanctionable under Article 101(1) TFEU, as in the Wouters judgment[21]. The Supreme Court, emphasising that the Court of Appeal had not carried out any irrelevant inquiry as alleged by the defendant, ultimately dismisses the appeal in all its pleas.

Nicolas BUCCINO

[1] French Competition Authority (Autorité de la concurrence – ADLC), Decision No 20-D-17 of 12 November 2020

[2] “Call for a boycott of healthcare networks: Selinsky Cholet, SELARL

[3] Paris Court of Appeal, Judgment of 14 September 2023

[4] Article 11 ECHR (Freedom of association)

[5] Op. cit. 4

[6] Höfner and Elser v Macrotron GmbH, Case C-41/90, Judgment of 23 April 1991

[8] Organisation professionnelle – Livv,ue – Louis Vogel, Glossaire

[9] Wouters and Others v Algemene Raad van de Nederlandse Orde van Advocaten, Case C-309/99, Judgment of 19 February 2002

[10] Groupement des Cartes Bancaires (CB) v European Commission, Case C-67/13 P, Judgment of 11 September 2014

[11] European Superleague Company SL v UEFA and FIFA, Joined Cases C-333/21, C-334/21 and C-335/21, Judgment of 21 December 2023

[12] Op.cit.4

[13] Pierre Arhel, Répertoire de droit commercial, Dalloz, February 2021, §1: Anticompetitive Object

[14] Article 10 ECHR (Freedom of expression)

[15] Article 11 ECHR (Freedom of association)

[16] French Supreme Court (Cour de cassation), Commercial Chamber, Judgment of 25 June 2025

[17] Op.cit.1

[18] Idem

[19] Op.cit.4

[20] Commercial Law Encyclopaedia, Pierre Arhel, updated in November 2025

[21] Olivier Vibert, French Law Blog, 22 October 2025