Anne-Lise Sibony

In a ruling that will also attract attention with regard to the rules of unfair competition and consumer law, the Paris Court of Appeals confirms the condemnation of the newspaper La Montage pronounced by the Commercial Court of Lyon. The practices alleged against the newspaper were as (...)

In a previous issue of this column, we wrote that decisions to convict for abuse of a dominant position were becoming rare as the settlement procedure became so widespread. In the Altstoff Recycling Austria (ARA) case, however, the Commission is issuing a decision on the basis of Article 7 of (...)

Judgments by the Luxembourg judges on abuse of a dominant position are relatively rare, in particular because of the considerable development of commitment procedures over the last few years. This development is drying up the flow of Commission decisions finding infringements of Article 102 (...)

Since Brexit, there has been renewed interest in the EFTA Agreement. However, it is independently of Brexit that the judgment of the EFTA Court in the holship case should be set aside. The Norwegian Supreme Court had referred to the Court for a preliminary ruling a case in which the national (...)

The law on abuse of a dominant position owes a great deal to the opening up of the telecoms sector to competition. This time, we are talking about practices that took place in metropolitan France between 2005 and 2011. At the time, mobile phone operators offered subscriptions distinguishing (...)

The Court of First Instance rejects the interpretation of Article 7 of Regulation No 1/2003 according to which the Commission is always under an obligation to state reasons for its interest in pursuing an infringement which has already been terminated. That is the case, the Court holds, only (...)

After opening an investigation in July 2015, the Commission notified two sets of objections to Qualcomm, a manufacturer of 3G and 4G chips. The first concerns an exclusive supply obligation with a manufacturer of smartphones and tablets, which has committed since 2011 to source 3G and 4G chips (...)

Regular readers of this column will have developed, since 2009, a certain familiarity with the mobile telephony market in the French overseas departments and territories, which has given rise to a fairly large number of decisions (Decision No. 09-MC-02 of 16 September 2009 on protective (...)

In a judgment dated January 31, 2012, the Paris Commercial Court found Google guilty of abusing its dominant position through predatory pricing and ordered it to pay a fine of 500,000 euros. The case had been brought by the company Bottin Cartographes, which complained that the Google API (...)

Was there a need to clarify the law applicable to loyalty rebates? The Danish Maritime and Commercial Court, seised in cassation of a case concerning discounts offered by Post Danmark on bulk mailings, held that there was. That case, which is distinct from the case which gave rise to the (...)

It is not very common for a Chinese company to take action for infringement of one of its patents against a European company. That was, however, the case in the dispute which led the Landgericht Düsseldorf to refer to the Court for a preliminary ruling a new question concerning a particular (...)

In order to deploy and maintain their network, mobile operators must have access to high points where they install their antennas. In cities, these high points are located on rooftop terraces, bell towers or other high buildings. In rural areas, they are mainly masts specially designed to (...)

Slovenská pošta, the Slovak Post, has been a Slovak State-owned company since 2004. The law reserves to it a monopoly on certain postal services, in accordance with the Postal Directive (Directive 97/67/EC, OJ 1998 L 15, p. 14 as amended by Directive 2002/39/EC, OJ 2002 L 176, p. 21). The (...)

Cass. com, Jan. 6, 2015, Orange Caribbean, No. 13-21305 13-22477 For the second time, the Commercial Chamber decides on an appeal concerning the decision of the Competition Authority in the Orange Caraïbe case, which dates back to 2009 (Aut. Conc., Dec. 09-D-36 of 9 December 2009, this (...)

By its Decision No 12-D-25 of 18 December 2012The Authority had condemned SNCF for several abuses on the rail freight market. It had fined SNCF nearly EUR 61 million and issued several injunctions. More specifically, the abuses were found to have taken place in the "mass train" market. This (...)

51 million to SFR under Article 1382 of the French Civil Code for having caused harm to its competitor by abusing its dominant position. 51 million to SFR under Article 1382 of the French Civil Code for having caused harm to its competitor by abusing its dominant position. The abuse consisted (...)

In the past, the Authority had already been informed of practices relating to the distribution of train tickets (Decision No 09-D-06 of 5 February 2009 on practices implemented by SNCF and Expedia in the online travel sales sector, etc.).). This time, the Authority has chosen the commitment (...)

Formerly a state monopoly, DEI remains a major electricity operator in Greece. It is just over 51% state-owned and has access to the country’s lignite deposits, which puts it at an advantage over its competitors. Lignite is indeed a fuel that can be used to produce electricity profitably. More (...)

The Telefónica case is important because of the debate it has generated on the full judicial review of fines imposed under competition law by the Court of First Instance and the Court of Justice (on this and other procedural aspects of the case, see the Chronicle of Proceedings in this (...)

Abuse of a dominant position is sometimes invoked in contractual disputes before the trial judges. This was the case in a case concerning the abrupt termination of contractual relations. The Helioscreen company had abruptly stopped sourcing fireproof fibreglass yarn from the company Chavanoz. (...)

Decisions by which the Commission finds an infringement in the field of abuse of a dominant position have become rare. It is only in this respect that the decision against the Romanian Power Exchange (OPCOM) is noteworthy. For the rest, it does not bring any major novelty. The practices (...)

In an opinion of the Competition Authority on the fruit and vegetable sector, it is stated with dismay that French consumers eat an average of only 342 grams of fruit and vegetables per day. Beyond this dismal finding for public health policy, the opinion is interesting for three other (...)

Paris Commercial Court, 15th district, Feb. 12, 2014, SFR v. France Telecom The judgment handed down by the Paris Commercial Court in the case SFR v. France Télécom would greatly simplify competition law if it were not overturned on appeal for lack of legal basis. Both the method for (...)

The Court is seised of several questions of interpretation of Article 102 in the light of the Commission’s communication on exclusionary abuses. The first question concerns the conditions under which rebates determined on the basis of purchase volumes are abusive. In particular, the national (...)

Cogent is an American operator specialising in Internet transit. It offers its customers, who are internet service providers, access to the global network. Cogent’s business involves entering into agreements with other operators to transit data over their networks. Between the major operators, (...)

Google’s conviction at first instance: Predatory gratuitousness sanctioned ---- The Bottin Cartographe company specialises in the creation of web applications for access maps, maps for locating addresses and online route planning. Google offers this type of service free of charge to Internet (...)

Trib. EU, October 16, 2013, Vivendi v. Commission, Case T-432/10 In 2009, Vivendi and Iliad, owners of the entire share capital of Free SAS, filed a complaint with the Commission alleging that France Telecom was abusing its dominant position on the broadband Internet access and telephone (...)

In 2003, Wanadoo Espana SL filed a complaint with the Commission against Telefonica alleging abuse of its dominant position. According to Wanadoo, the margin between the wholesale prices charged by Telefonica’s subsidiaries to its competitors for the provision of broadband access in Spain and (...)

On 13 February 2006, the European Federation of Ink and Ink Cartridge Manufacturers (’EFIM’) lodged a complaint with the Commission against Hewlett-Packard, Lexmark, Canon and Epson, original equipment manufacturers of inkjet printers. The Commission rejected the complaint for lack of Union (...)

In a press release dated July 25, 2013, the Authority stated that it had taken note of Free’s withdrawal from proceedings seeking to have France Télécom found guilty of abuse of a dominant position for refusing to grant access to some of its infrastructure, thereby preventing its competitors (...)

The foreclosure practices implemented by the incumbent’s subsidiaries in the overseas mobile telephony sector have been the subject of numerous decisions commented on in these columns. The issue at stake in the reported judgment, handed down by the Paris Court of Appeal on referral after (...)

The complaint of a Romanian software producer against Microsoft had been rejected by the Commission for lack of Union interest. The Commission closed the complaint on the grounds, firstly, that Microsoft did not appear to dominate any of the potentially relevant markets and, secondly, that the (...)

After 8 years of legal vicissitudes, the decision of the Competition Council of 23 December 2004 in the "vedettes vendéennes" case is annulled and the case is referred back to the Competition Authority for investigation. In this decision, the Council found that the Régie des passages d’eau de (...)

NavX was claiming €20 million from Google for financial damages and €3 million for damage to its image caused, according to the complainant, by an abuse of a dominant position. The Commercial Court rejects the classification as an abuse of a dominant position. It holds that the fact that (...)

(see also, column "Regulation", this issue) In the context of an opinion procedure, the Competition Authority does not decide on any particular case. Therefore, no abuse is involved. On the other hand, the Authority’s general concerns regarding the contractual relations between mobile (...)

Trib. EU, 20 September 2012, DEI v. Commission, T-169/08 and T-421/09 The annulment of a Commission decision for violation of Article 102 is rare. In this sense, the DEI judgment deserves a mention in this column. However, it should be made clear from the outset that the DEI case concerned (...)

Aut. conc. 20.09.12, Decision 12-D-18. on practices in the sector of reciprocal interconnection services in the area of connectivity The competition authority was seized of a complaint by Cogent against France Télécom concerning several interconnection practices of the French incumbent (...)

Trib. EU, 13 Sept. 2012, Protégé International v Commission, Case T-119/09 In December 2006, the Protégé group, which owns several Whiskey brands (including ’Wild Geese’ and its derivatives), complained to the Pernod-Ricard Commission about the practices of the Pernod-Ricard group. Through (...)

Interview conducted by Anne-Lise Sibony, Université Catholique de Louvain, Belgium, et Jean-Christophe Roda, Université d’Aix-Marseille, France. Doris Hildebrand, your book The Role of Economic Analysis in the EC Competition Rules – The European School is a landmark for European competition (...)

CJEU, 19 April 2012, Tomra and Others v Commission, Case C-549/10 P The Court’s Tomra judgment is in line with the case-law on abuse: the appeal against the judgment of the Court of First Instance is dismissed, definitively validating a decision by which the Commission had condemned the (...)

EFTA Court, 18 April 2012, Posten Norge v EFTA Authority, case E-15/10 (see also, "Procedures" column, ConcurrencesNo. 3-2012 p. 193, obs. Fr. Cardonnel) While judgments of the European Free Trade Association (EFTA) Court (currently including Iceland, Norway and Lichtenstein) are rare (11 (...)

Trib. UE, 29 March 2012, Telefónica and Telefónica de España v Commission, Case T-336/07 Trib. EU, 29 March 2012, Spain v Commission, Case T-398/07 In two judgments of 29 March 2012, the Court of First Instance dismisses two separate actions relating to the same Commission decision of 4 (...)

CJEU, 27 March 2012, Post Danmark, aff. C-209/10 The judgment of the Grand Chamber in the Post Danmark case is important because it marks the Court’s adherence to an effects-based approach to abuse and exclusion in a clearer way than in previous judgments and in more general terms. The (...)

Eur. comm., 22 June 2011, Telekomunikacja Polska, Case COMP/39525 In a June decision published in November 2011, the European Commission imposed a fine of 127 million euros on the Polish incumbent operator for abusing its dominant position in the Internet access market. The existence of this (...)

Concordance Aut. conc. dec. 12-D-05 of January 24, 2012 on SRR’s compliance with the injunction issued by Decision 09-MC-02 of September 16, 2009 In September 2009, the Competition Authority had adopted protective measures against SRR (Decision No 09-MC-02). The dominant operator on the (...)

Cass. com, July 12, 2011, Lafarge and Vicat, n° 10-17482 and 10-17791, "Corsican Cement". (See also, supra, "Agreements" column, obs. Mr. Debroux) The facts Two French cement manufacturers, Lafarge and Vicat, had been condemned by the Competition Council for practices whose object and effect (...)

Aut. conc,. dec. no. 11-MC-01 of 12 May 2011 relating to the request for interim measures submitted by Kiala France and Kiala SA in the parcel delivery sector In a decision handed down on 12 May 2011, the Competition Authority orders protective measures to safeguard emerging competition in (...)

(See also, "cartels" column, supra, obs. C. Sarrazin and "public sector" column, infra, obs. J.-Ph. Kovar) CJEU, 3 March 2011, AG2R Prévoyance, case C-437/09 Business concept Our previous column referred to the Opinion of Advocate General Mengozi in the AG2R case, challenging the (...)

CJEU, 17 February 2011, TeliaSonera, aff. C-52/09 Shortly after delivering its first judgment on margin squeeze abuse in the Deutsche Telekom case (CJEU, 14 October 2010, Case C-280/08 P, ConcurrencesNo. 1 2011, this column, pp. 91-95.), the Court was asked to clarify its case law in this (...)

on second reference after cassation; against Aut. conc., dec. no. 04-D-48 of October 14, 2004 relating to practices implemented by France Telecom, SFR Cegetel and Bouygues Telecom By chance, the Paris Court of Appeal handed down a ruling in January on abuse by margin squeeze ("margin (...)

CJEU, 14 October 2010, Deutsche Telekom v Commission, Case C-280/08 P The judgment of 14 October 2010 in the Deutsche Telekom case is the first judgment of the Court in a "margin squeeze" case, since this is the term chosen by the Court in preference to "margin squeeze", which was used by (...)

Tomra is a manufacturer of machines installed in supermarkets, which recognise beverage packaging by its shape, barcode or other features and calculate the amount of deposit to be refunded to customers. The Tomra Group distributes these machines in Europe via national distribution (...)

A few issues ago, in the same column, we thought that the case of the inter-island stars from the Vendée had found its epilogue before the ParisCourt of Appeal. Fortunately, we were wrong: the fact that the company at the origin of the complaint was in receivership did not finally prevent the (...)

The main interest of the ICI judgment is procedural. It rules on an appeal against a Commission decision re-criminalizing an infringement already established almost ten years ago, in a decision which had been annulled on procedural grounds. From the point of view of the law of unilateral (...)

– Eur. Commission, Dec. art. 9 Reg. 1/2003, 04.05.10, E.ON AG, case COMP/39.317, see IP/10/494 and MEMO/10/164

Conclusions AG Mazák, 22 April 2010, Deutsche Telekom v Commission, Case C-280/08 P The Advocate General calls on the Court to dismiss the appeal in what will be its first judgment on an abuse consisting in a margin squeeze. This case raises interesting questions about the relationship (...)

Eur. Comm, dec. art. 9 Reg. 1/2003, 14.04.10, Swedish Interconnectors, case COMP/39.351 By a decision of 14 April 2009, the Commission has made commitments offered by the Swedish electricity transmission system operator SvK binding. The commitments address the Commission’s concerns regarding (...)

Aut. conc. dec. no. 10-D-08 of March 3, 2010 relating to practices implemented by Carrefour in the local general food retail sector The historic grocers’ union (SEFAG), which in its complaint implicates a series of contractual practices implemented by the Carrefour group in its relations (...)

Aut. conc. dec. no. 10-D-07 of March 2, 2010 relating to practices implemented by Kadéos in the prepaid gift voucher sector The French Competition Authority rejects the request for protective measures brought by the company Titres Cadeaux against Kadéos (formerly PPR Group, sold to the Accor (...)

Aut. conc. dec. no. 10-D-06 of February 26, 2010 relating to practices implemented by the Société des Téléphériques de la Grande Motte (SGTM) SGTM, the exclusive operator of the cable cars in the Tignes ski area, offers ski lift passes to operators who buy them to resell them. The commercial (...)

CA Paris, ch. 5-7, 23 February 2010, Expédia, Karavel, SNCF and others.v. Council, Dec. No. 09-D-06 of February 5, 2009 relating to practices implemented by SNCF and Expedia Inc. in the online travel sales sector In a judgment of 23 February, the Paris Court of Appeal upheld the decision of (...)

Council Regulation (EC) No. 09-D-40 of 22 December 2009 on practices implemented in the waste oil processing sector The possibility of explaining by a competitive mechanism the facts complained of by a company precludes abuse. This is the result of a decision in which the Competition (...)

Trib. UE, 17 December 2009, Solvay v Commission, Case T-57/01 Certainly, it is on the procedural level that the two Solvay judgments handed down by the Court of First Instance on 17 December last call for the most comment (see the section on proceedings in this issue). However, in these (...)

Eur. Comm, MEMO/09/567, 17 December 2009, Antitrust: Commission welcomes E.ON proposals to increase competition in German gas market, case COMP/39.317, commitments available on the DG Competition website The Commission had identified a possible abuse of a dominant position by E.ON on the (...)

– Eur. Comm, dec. art. 9 Reg. 1/2003, 16 December 2009, Microsoft (Tying), Case COMP/39.530, DG Competition website By a decision of 9 December, the Commission renders legally binding commitments offered by Rambus Inc. capping in particular its royalty rates on certain patents relating to (...)

Aut. conc. dec. no. 09-D-36 of December 9, 2009, relating to practices implemented by Orange Caraïbe and France Telecom on various electronic communications services markets in the departments of Martinique, Guadeloupe and French Guiana In a new decision on practices found in the overseas (...)

Eur. Comm, IP/09/1872 and MEMO/09/536, 3 December 2009, Antitrust: Commission accepts commitments by GDF Suez to boost competition in French gas market, "GDF foreclosure", case COMP/39.316, commitments available on the DG Competition website Following a sector inquiry into the gas market, (...)

– Aut. conc. dec. no. 09-MC-02 of September 16, 2009 relating to the merits of the case and the requests for protective measures presented by Orange Réunion, Orange Mayotte and Outremer Télécom concerning practices implemented by the company. The French Competition Authority enjoins the (...)

– CFI, 9 September 2009, Clearstream v Commission, Case T-301/04 Clearstream is, as we know, a clearing and settlement organization for securities transactions. The Clearstream group consists of, inter alia, a parent company established in Luxembourg and a subsidiary established in (...)

ECJ, 16 July 2009, Der Grüne Punkt v Commission, Case C-385/07 P This summer the Court delivered its judgment on appeal in the Grüne Punkt case. The German company DSD, which operates the Grüne Punkt brand, is the leading national player on the German waste recycling market. This activity (...)

CA Paris, ch. 5-7, 9 June 2009, Vedettes inter-îles vendéennes on remand after cassation, against Cons. conc. 04-D-79 of 23 December 2004 relating to practices implemented by the Régie départementale des passages d’eau de la Vendée (RDPEV) The "vedettes vendéennes" case probably knows its (...)

Aut. conc. dec. n° 09-D-18 of 2 June 2009 relating to the practices implemented on the occasion of the constitution of the RTM-Veolia temporary grouping of companies with a view to its candidacy for the CUMPM public service delegation for the operation of the tramway network of the city of (...)

– EC Commission, Dec. C(2009) 3726 final of 13 May 2009, Intel, Case COMP/C-37.990 From the Commission’s Intel decision, it was known that the Commission had imposed the highest fine ever imposed on a company under European competition law (€1.06 billion). A press release had set out the (...)

In its judgment in Wanadoo, the Court of First Instance confirmed the Commission’s condemnation of pricing practices implemented by France Télécom at the time of the launch of high-speed internet access for individuals in France (CFI, 30 January 2007, France Télécom v Commission, T 340/03, ECR (...)

ECJ, 26 March 2009, Selex Sistemi Integrati v Commission and Eurocontrol, Case C-113/07 P The Selex judgment is the main topic of the public sector section of this N° 2-2009 issue of Concurrences. However, it is worth mentioning its contribution concerning the classification as an economic (...)

Aut. conc. dec. no. 09-D-14 of 25 March 2009 on practices implemented in the electricity supply sector As in certain cases relating to the undertakers’ sector (funeral directors in the Lyon region, see "Note" below)), but even more clearly, the case concerning the distribution of electricity (...)

ECJ, 5.3.09, Kattner Stahlbau GmbH, case C-350/07 In a judgment delivered by way of preliminary ruling, the Court of Justice is called upon to review the concept of undertaking within the meaning of Article 82 EC in order to answer a question from a court in a dispute between a German (...)

The case that gave rise to the SFR and France Telecom ruling of March 3 is well known to observers of the telecom sector as well as readers of this column. Indeed, this is the second judgment of the French Supreme Court. I. A look back at the saga: Tariff scissors, rerouting, sibylline (...)

Conc. conc. dec. no. 09-D-06 of February 5, 2009 regarding practices implemented by the SNCF and Expedia Inc. in the online travel sales industry Most travellers using railway lines in France are familiar with the site voyages-sncf.com, the online travel agency which, among other things, (...)

EC Commission, 3 December 2008, Guidance on priorities in the application of Article 82 to abusive exclusionary conduct The Guidelines on the application of Article 82 EC were becoming the "vintage" of Community competition law. As a result, it was questioned whether they would ever be (...)

Cons. conc. dec. n°08-D-18 of July 30, 2008 relating to towing activities by the autonomous port of Le Havre and the SNRH (French National Health Service) A rather curious case was brought before the Council by a company operating towage services in the port of Le Havre, the Boluda company. (...)

ECJ, 1 July 2008, Motosykletistiki Omospondia Ellados NPID (MOTOE) v. Elliniko Dimosio, case C-49/07 In Greece, the organisation of motorcycle races is subject to prior authorisation. Authorisations must be requested from the Ministry of Public Order, which decides on the assent of the body (...)

Cons. conc. dec. no. 08-D-09 of 6 May 2008 relating to practices implemented in the funeral sector in Lyon and its suburbs This is far from being the first time that common business practices of a former monopoly holder of the public funeral service have been considered abusive. The Bodson (...)

CFI, 10 April 2008, Deutsche Telekom v. Commission, Case T-271/03 The Deutsche Telekom case called for the first time on the Court of First Instance to rule on the application of Article 82 to a pricing practice which induced a so-called scissor effect (paragraph 188). A margin squeeze (...)

CA Paris, 1st ch. H, April 8, 2008, Glaxo SmithKline Laboratoryv. Conc. conc., Dec. no. 07-D-09 of 14 March 2007 An additional episode is added to the already long saga of the Nouvelles Messageries de la presse parisienne (NMPP) (interim measures, appeal, two judgments of the Court of (...)

Conclusions AG Ruiz-Jarabo Colomer, 1 April 2008, Sot. Lélos Kai Sia E.E. v. Glaxosmithkline, cases C-468/06 to C-478/06 It is not customary to report the conclusions of an Advocate General in a case-law column. However, even in such a column, exceptional circumstances call for exceptional (...)

Cons. conc. dec. n° 08-D-04 of 25 February 2008 relating to practices implemented by the Nouvelles Messageries de la Presse Parisienne (NMPP) An additional episode is added to the already long saga of the Nouvelles Messageries de la presse parisienne (NMPP) (interim measures, appeal, two (...)

Work awarded by the Academy of Moral and Political Sciences, Prix Emile Girardeau, 2005. "Ioannis Lianos’ thesis opens with an enriching investigation of the relationship between law and economics ¨(…) The concern for a realistic economic analysis leads him to consider all the forms that (...)