Catholic University of Louvain

Anne-Lise Sibony

Catholic University of Louvain
Professor of Law

Anne-Lise Sibony is professor of European Law at the University of Louvain (Belgium). She read law and economics in Paris, graduated from the Ecole Normale Supérieure (Paris) and holds a Master’s degree in Regulation from the London School of Economics. Anne-Lise wrote her PhD on the judicial use of economic reasoning in EU and French competition law.

In Louvain, she teaches internal market law and EU consumer law. She is also guest professor at the University Paris II, where she co-teaches the EU competition law course in the LLM programme. Her current research focuses on how behavioural insights may be used in law-making.

Anne-Lise Sibony was awarded the Concurrences PhD award in 2008 for her thesis Le juge et le raisonnement économique en droit de la concurrence.

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Catholic University of Louvain
Catholic University of Louvain
Catholic University of Louvain
General Court of the European Union (Luxembourg)
Catholic University of Louvain


140717 Review

Anne-Lise Sibony Predatory prices: The French Competition Authority rejects a complaint concerning alleged predatory prices on the emerging market for intercity bus transport in France (Transport de voyageurs)


Although it is a rejection decision, the Competition Authority’s decision on practices in the coach passenger transport sector is interesting in that it is the first decision in this sector open to competition under the Macron Act. In addition, it contains developments that can be applied (...)

Anne-Lise Sibony Damage to be compensated: The Paris Court of appeals reduces the amount of damages calculated by the Paris commercial Court following abusive loyalty programme (Orange Caraïbe / Outremer Telecom)


France Telecom’s subsidiary active in the Caribbean markets had been condemned for various practices that delayed the entry of the second and third operators on these markets (Aut. conc. Dec. 9, 2009, Dec. No. 09-D-36 CA Paris, July 4, 2013, No. 10/00163 and Cass. com, Jan. 6, 2015, Nos. (...)

Anne-Lise Sibony Unfairly high prices: Advocate General N. Wahl proposes to the Court of Justice of the European Union to only consider significantly and persistently high prices above the benchmark price as abusive (Biedrība / Konkurences padome)


Reference has been made to the Court for a preliminary ruling by the Supreme Court of Latvia on a series of questions from the Supreme Court of Latvia concerning the classification of a price as unfair within the meaning of the second paragraph of Article 102(a) TFEU. The case which gave rise (...)

Anne-Lise Sibony Aftermarkets: The French Competition Authority rejects claims alleging that aftermarket for servicing copying machine would be distinct from the primary market of copying machines and rejects the existence of leveraging effects


It is regrettable that the Xerox Dealers Association (ACRX) did not prepare its referral to the Competition Authority better, as the issues raised were potentially interesting and could have given rise to an argument that would have relied on some input from behavioural sciences. This (...)

Anne-Lise Sibony Relevant Market : The General Court of the European Union puts an end to the story regarding joint application of articles 106 and 102 TFEU to Greek electricity sector (DEI)


The judgment of 15 December 2016 definitively validates a decision by which the Commission had in 2008 (following a complaint dating back to 2003) condemned Greece for granting privileged treatment to DEI, a public undertaking which extracts most of the lignite (a form of coal) in Greece and (...)

Anne-Lise Sibony Tying: The Paris Court of Appeals upholds the Lyon commercial court’s finding that a newspaper abused its dominant position by tying online services with the publication of obituary notice (La Montagne / Aviscom)


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 (...)

Anne-Lise Sibony Divestiture : The European Commission imposes a fine of 6 million € to a packaging collection scheme in Austria for having denied access to the collection network, considered as an essential facility (ARA Foreclosure)


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 (...)

Anne-Lise Sibony, Frédéric Marty Essential facility: The General Court of the European Union holds that, to open the market of consolidated real-time data feeds, the Commission was justified to limit itself to behavioural remedies affecting the dominant undertaking and third parties, to the exclusion of competitors (Morningstar / Morningstar / Thomson Reuters)


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 (...)

Anne-Lise Sibony EFTA : The EFTA Court rules that Article 54 of the EEA Agreement (the counterpart of article 102 TFUE) may apply to a boycott initiated by a trade union and implemented by a port administration with a view to bring a forwarding agent to use unloading and loading services offered by workers employed by the port administration (Holship Norge c/ Norsk Transportarbeidforbund)


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 (...)

Anne-Lise Sibony Margin squeeze: The Paris Court of Appeal, after having requested an amicus opinion from the Commission, rules that two French telecom operators abused their respective dominant position by abusively differenciating tariffs of on-net and off-net calls (Orange et SFR)


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 (...)

Anne-Lise Sibony Market foreclosure: The General Court of the European Union confirms a Commission’s decision condemning the Polish incumbent on the market for telecommunications for several foreclosure practices against new entrants on the Polish market for broadband internet connection during the market liberalisation period (Orange Polska)


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 (...)

Anne-Lise Sibony Exclusionary practice: The European Commission sends two statement of objections to a manufacturer on the market for chipsets regarding an exclusive dealing obligation and a potential predatory practice between 2009 and 2011 with the aim of forcing a competitor out of the market (Qualcomm)


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 (...)

Anne-Lise Sibony Predatory pricing: The Paris Court of Appeal upholds the French Competition Authority’s decision considering that no predation can be established on the French market for map APIs (Google / Evermaps)


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 (...)

Anne-Lise Sibony Essential patents : The Court of Justice of the European Union specifies the conditions of an infringement action concerning an essential patent (Huawei Technologies, ZTE)


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 (...)

Anne-Lise Sibony Market foreclosure : The French Competition Authority renders binding commitments to prevent the conclusion of 20-year long hosting contracts for telecom antennas, which would foreclose the market for hosting services (Téléphonie mobile)


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 (...)

Anne-Lise Sibony Monopoly : The General Court of the European Union rejects an appeal against the Commission’s decision establishing that Slovak Postal law constitutes a State Aid in that it extends the scope of the postal monopoly and thus reduces customer choice (Slovenská pošta)


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 (...)

Anne-Lise Sibony Exclusionary intent: The Paris Court of Appeals partially annuls the French Competition Authority’s decision and finds that there was no exclusionary intent on the part of the incumbent French railway operator (SNCF)


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 (...)

Anne-Lise Sibony Exclusionary abuse: The Paris Court of Appeals annuls the Paris Commercial Court’s judgment for having condemned foreclosure practices without having controlled neither the relevant market delimitation nor the existence of a foreclosure effect (Orange, SFR)


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 (...)

Anne-Lise Sibony Automatic abuse : The Court of Justice of the European Union considers that it is not necessary to show that the business in a dominant position has committed or could commit a defined abuse ; it is sufficient to state that the State action distorts equality among competitors (DEI)


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 (...)

Anne-Lise Sibony Contract dispute : The French Supreme Court approves of trial courts having considered that a company who sells 90% of its production to two clients belonging to the same group cannot hold a dominant position (Hunter Douglas)


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. (...)

Anne-Lise Sibony Exclusionary abuse : The European Commission imposes a € 1 m fine on the Romanian electricity exchange for discrimination between domestic and other EU traders by means of a mandatory local VAT registration (Romanian Power Exchange)


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 (...)

Anne-Lise Sibony Opinion: The French Competition Authority invites French fruit and vegetables growers to unite in order to achieve a more balanced commercial relationship with supermarkets


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 (...)

Anne-Lise Sibony Exclusion: The Paris commercial court awards €50 million in damages to a telecom company who lost revenues by not being able to enter the second home market because of exclusionary practices by the dominant operator (SFR)


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 (...)

Anne-Lise Sibony Preliminary question: The Court of Justice of the European Union is to deal with a preliminary question related to the meaning of the competitor as efficient criterion


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 (...)

Anne-Lise Sibony Peering agreements: The Paris Court of Appeals confirms that the national competition authority did not have to consider that a refusal to increase capacity in the context of a peering agreement between internet operators raised competition concerns (Cogent)


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, (...)

Anne-Lise Sibony Predatory pricing : The Paris Court of Appeals requests an opinion from the French Competition Authority on the predatory nature of zero pricing in online mapping and localisation services (Google / Bottin cartographe)


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 (...)

Anne-Lise Sibony Margin squeeze : The General Court of the European Union states that the Commission enjoys a wide margin of discretion when taking into account decisions and documents established by national regulators (Vivendi)


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 (...)

Anne-Lise Sibony Abuse of dominance : The Advocate General Wathelet suggests to send a case related to the abuse of dominance back to the General Court so that the amount of the fine be fully examined (Telefonica)


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 (...)

Anne-Lise Sibony Abuse of dominance : The Court of Justice of the European Union considers that the Commission can refuse to examine a complaint due to low probability of proving the existence of an infringement of the article 102 TFEU, no matter its seriousness (Ink)


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 (...)

Anne-Lise Sibony Absence of a dominant position: The Court of Justice rejects a complaint against a European Commission decision not to investigate a complaint against practices in a non-dominated market (Omnis Group)


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 (...)

Anne-Lise Sibony Incremental costs: The Paris Court of Appeal, seized for the third times in a case about ferries in Vendée, relies on the Post Danmark judgement of the Court of justice, incorporates the effects-based approach in French competition law and applies the modified Akzo test for predation, using incremental costs for a multi-product firm (Pelletier)


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 (...)

Anne-Lise Sibony Advertising contract: The Paris Commercial Court clears a dominant operator on the market of the sponsored links for advertising that closed the account of a warning radars company (NavX/Google)


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 (...)

Anne-Lise Sibony Automatic abuse: The General Court annuls the Commission’s decision judging that in order to apply Art. 102 together with Art. 106, the Commission should have state clearly the alleged abuse and not only the competitive advantage arising from the contested regulation (DEI)


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 (...)

Anne-Lise Sibony Exclusionary practices: The French Competition Authority makes binding commitments proposed by the French telecommunications dominant operator in order to avoid price squeeze on the Internet interconnection market (Cogent/France Télécom)


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 (...)

Anne-Lise Sibony Absence of EU interest: The General Court rules that the Commission did not misuse its discretion by refusing to enquire into alledged abuive practices in the market for Irish whiskey (Protégé International)


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 (...)

Anne-Lise Sibony Exclusive supply agreements – Fidelity rebates: The Court of Justice of the European Union rules that intent is relevant for the purposes of assessing abusive conduct (Tomra)


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 (...)

Anne-Lise Sibony Exclusionary abuses - Efficiencies: The EFTA Court rejects appeal against the Posten Norge decision fining Norwegian Post 12 million EUR for having forclosed access to the market for B-to-C parcel delivery (Posten Norge)


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 (...)

Anne-Lise Sibony, Frédéric Marty Margin squeeze: The General Court rejects appeals against the Commission decision fining a Spanish telecommunications operator for margin squeeze and gives guidance as to how to apply the as-efficient-competitor test (Telefónica and Telefónica de España - Spain)


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 (...)

Anne-Lise Sibony Selective rebates – Universal service obligations: The Court of Justice, Grand Chamber, rules that selective rebates targeting clients of a competitor are not abusive when prices are below incremental cost but cover marginal cost and when no intent to eliminate competitor has been established (Post Danmark)


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 (...)

Anne-Lise Sibony, Frédéric Marty Refusal to deal : The European Commission imposes a 127 million Euros fine on the Polish incumbent telecom operator for having abused its dominant position by delaying entry in the market for Internet access (Telekomunikacja Polska)


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 (...)

Anne-Lise Sibony Abuse of a collective dominant position: The Court of cassation rules that the annulment of a NCA decision in relation to an abuse does not necessarily imply that the fine must be reduced in a case where the conduct of French cement producers had initially been sanctioned both as anticompetitive agreements and as abuse of a collective dominant position (Lafarge and Vicat)


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 (...)

Anne-Lise Sibony Fidelity rebates – Discrimination: The French Competition Authority suspends application of an agreement between the French incumbent operator and an operator active in delivery of parcels to collection points and will carry on investigating possible abusive practices (Kiala, La Poste)


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 (...)

Anne-Lise Sibony Notion of Undertaking – SGEI: The Court of Justice of the European Union rules that an exclusive right granted to a specific insuring body does not amount to a violation of article 102 TFEU where justified by a risk of adverse selection (AG2R Prévoyance/Beaudout Père et Fils)


(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 (...)

Anne-Lise Sibony Margin squeeze: The Court of Justice rules that an abuse of a dominant position in the form of margin squeeze may be constituted even where intermediary services do not constitute an indispensible input for new entrants on the downstream market, provided potential exclusionary effect is established (Konkurrensverket/TeliaSonera)


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 (...)

Anne-Lise Sibony Margin squeeze: The Paris Court of Appeal annuls a fine of 18 M € in a margin squeeze case on the grounds that indispensible character of services sold to competitors by the dominant undertakings was not sufficiently established (France Télécom, SFR Cegetel and Bouygues Télécom)


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 (...)

Anne-Lise Sibony Margin squeeze: The European Court of Justice rules for the first time on a margin squeeze case and confirms that partly regulated tarifs by a dominant operator may be abusive (Deutsche Telekom)


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 (...)

Anne-Lise Sibony Exclusivity - Fidelity rebates : The General Court of the European Union upholds the Commission decision imposing a fine of 24 millions euros on producer of reverse vending machines, for excluding its rivals by means of exclusive purchase agreement and fidelity rebates (Tomra Systems e.a.)


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 (...)

Anne-Lise Sibony Predatory pricing: The Court of Cassation quashes a judgement by the Paris Court of appeals for fundamental breaches of judge’s duties, refusal to define a product market and defective reasoning and emphasises that neither product market definition nor appraisal of predatory pricing call for a specific test in cases involving services of general economic interest (Vedettes inter-îles vendéennes II)


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 (...)

Anne-Lise Sibony Exclusivity - Fidelity rebates : The General Court upholds the Commission decision re-instating sanctions against a pharmaceutical undertaking for an infringement already established in a previous decision, which had been annulled for procedural reasons (Imperial Chemical Industries)


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 (...)

Anne-Lise Sibony Margin squeeze case: The Advocate General Mazák recommends the ECJ to confirm the ruling of the General Court in a margin squeeze case in the telecommunications sector (Deutsche Telekom)


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 (...)

Anne-Lise Sibony Commitments - Electricity network managment: The European Commission renders legally binding commitments of the Swedish electricity grid operator to change its method for managing congestion risk on the network and cease to discriminate between Swedish and Danish customers and to reinforce network capacity (Swedish Interconnectors)


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 (...)

Anne-Lise Sibony Refusal - Abuse of economic dependence: The French Competition Authority finds no abuse of economic dependence in the relationships between a large retail distributor its franchisees (Carrefour)


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 (...)

Anne-Lise Sibony Refusal: The French Competition Authority rejects an application for interim measures against alleged practices impeding access to the prepaid gifts vouchers and cards market concluding to lack of urgency and absence of risk of irreparable harm but proceeds its investigation on the substance (Kadéos)


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 (...)

Anne-Lise Sibony Binding commitments: The French Competition Authority renders binding commitments by the Tignes exclusive ski lift operator agreeing to offer the same discount schemes to local hotels and B&Bs distributing ski lift passes and to travel agents & tour operators (Téléphériques de la Grande Motte)


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 (...)

Anne-Lise Sibony Refusal: The Paris Court of Appeal upholds the French Competition Authority’s decision finding an abuse regarding online sale of train tickets (Karavel ; SNCF ; Expedia)


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 (...)

Anne-Lise Sibony Refusal: The French Competition Authority rejects the complaint from a recycling company against an allegedly dominant supplier of used oil. Abuse is excluded on the grounds that the decrease in quantities of used oil supplied (40% in 3 years) could be explained by the fact that other buyers were offering higher prices (Used Oil Collection and Recycling)


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 (...)

Anne-Lise Sibony Fidelity rebates: The General Court rejects an appeal against a Commission decision fining Solvay for abuse of a dominant position and applies existing case law on fidelity rebates with great fidelity, and reduces the € 20 m fine by € 1 m (Solvay)


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 (...)

Anne-Lise Sibony Commitments - Essential facility - Gas sector: The European Commission reviews EON’s commitment to a significant, structural reduction of its long-term gas capacity reservations so as to permit access of competitors to transport infrastructure, which is needed to supply gas to customers within the supplier’s network (E.ON)


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 (...)

Anne-Lise Sibony Unilateral practice - Commitments: The European Commission renders legally binding commitments by Microsoft to facilitate users choice of alternative browsers (Microsoft)


– 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 (...)

Anne-Lise Sibony Exclusive distribution: The French Competition Authority heavily fines abuses consisting in exclusive distributorship agreements and differentiated pricing of mobile telecommunication for on net and off net calls and, for the first time, applies EU law parent liability (Orange Caraïbe ; France Télécom)


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 (...)

Anne-Lise Sibony Commitments - Gas sector: The European Commission renders legally binding commitments by GDF-Suez to substantially reduce long-term reservations on French gas import infrastructure capacity, so as not to foreclose access of potential gas suppliers to the French market (GDF Suez)


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, (...)

Anne-Lise Sibony Interim measures: The French Competition Authority orders the incumbent operator of mobile telecommunication services in the islands of La Réunion and Mayotte to cease abusive pricing practices (Orange Mayotte ; Outremer Télécom ; SRR)


– 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 (...)

Anne-Lise Sibony Essential facility - Refusal to supply: The CFI confirms an abuse of dominant position consisting in hindering access to an essential facility and adopting discriminatory pricing (Clearstream)


– 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 (...)

Anne-Lise Sibony Exploitative abuse : The ECJ confirms CFI judgement in relation to excessive licencing fees by the operator of the major recycling scheme in Germany (Der Grüne Punkt)


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 (...)

Anne-Lise Sibony Incremental costs: The Paris Court of Appeal rules that notions of incremental costs and stand alone costs have no meaning in the case of an undertaking operating a service of general economic interest (Vedettes inter-îles vendéennes)


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 (...)

Anne-Lise Sibony Joint offer : The French Competition Authority rules that an incumbent public transport operator does not commit an abuse by organising a selection procedure in order to find a partner with a view to submitting a joint offer in response to a public tender: objective competitive advantage of the incumbent and specification of the tender procedure may be justifications for such conduct (RTM-Veolia)


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 (...)

Anne-Lise Sibony Exclusionary abuse: The European Commission inflicts the highest ever fine for an abuse consisting in offering to manufacturers rebates conditional on exclusivity and engaging in naked restrictions aimed at stopping components manufactured by competitor from reaching the market (Intel)


– 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 (...)

Anne-Lise Sibony Predation: The European Court of Justice rules that possibility of recoupment is not part of the legal test for predation; meeting competition defence is not available for dominant firms engaging in predatory pricing (France Télécom)


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 (...)

Anne-Lise Sibony Abusive denigration: The French Competition Council holds that denigration practices may constitute an abuse provided a link is established between dominance and the practices (Electricity supply to SMEs)


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 (...)

Anne-Lise Sibony Notion of undertaking: The ECJ, applying its Cisal ruling, holds that a body providing insurance against accidents at work and occupational diseases is not an undertaking within the meaning of article 82 EC if its activity is subject to the principle of solidarity and subject to State control (Kattner Stahlbau)


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 (...)

Anne-Lise Sibony Abusive margin squeeze: The Court of Cassation rules that the test for abusive margin squeeze is whether pricing by dominant firm inflicts losses to as efficient entrants; such losses cannot occur unless the good or service at hand is indispensable for a new entrant in order to penetrate the market (SFR - France Télécom)


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 (...)

Anne-Lise Sibony Internet exclusive distribution: The French Competition Council inflicts a limited fine to the incumbent rail operator for abusing its dominant position on the market for distribution of train tickets (SNCF - Expedia)


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, the online travel agency which, among other things, (...)

Anne-Lise Sibony Art. 82 Guidelines: The European Commission sets up a new framework for analysis of exlusionary conduct through guidances on its enforcement priorities in applying Article 82 EC Treaty to abusive exclusionary conduct by dominant undertakings


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 (...)

Anne-Lise Sibony Notion of undertaking: The ECJ applies to an organiser of sports competition well settled case law on abuse resulting from national rules putting an entity in a conflict of interest (MOTOE / Elliniko Dimosio)


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 (...)

Anne-Lise Sibony Confusion between public service and commercial operations: The French Competition Council strikes commercial practices of a public funeral operator causing confusion among consumers as to the distinction between provision of public service and commercial operations (Public funeral operator sector)


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 (...)

Anne-Lise Sibony Abusive margin squeeze : The Court of First Instance dismisses action against European Commission’s decision stating abusive margin squeeze despite charges submitted to regulation (Deutsche Telekom)


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 (...)

Anne-Lise Sibony Parallel trade : ECJ Advocate General Colomer is of the opinion that partial refusal is not a per se abuse, but intention to stop parallel trade creates a strong presumption of abuse (Lélos/Glaxosmithkline)


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 (...)

Anne-Lise Sibony Access to essential facilities: The French Competition Council accepts modified commitments to grant access to the “common core” of a newspaper retail management software (NMPP)


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 (...)


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