Competition law challenge to TUPE poison pill

Interim measures decision (15 pages in French, PDF) of the French Conseil de la concurrence ordering a nursery school in Bouc Bel Air to suspend the operation of a clause in employees' contracts that triggers a substantial payment to employees if the employer becomes part of a group employing more than 60 staff. The Conseil found that this clause was a manifestly anti-competitive exploitation of TUPE provisions, in potential breach of Article 82, as it was intended to prevent most other bidders (which are larger companies) from making a competitive offer for the contract to be tendered by the local authority to manage the nursery school. The relevant dominant position was found in the current supply of nursery school management, and the link with the market for future management (which is potentially competitive given the forthcoming tendering exercise) is identified as being the French TUPE provisions requiring existing employment contracts to be honoured by the new operator.

Filed under Conseil de la concurrence, France.

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