Baker Mckenzie (Paris)

Emmanuel Guillaume

Baker Mckenzie (Paris)
Lawyer (Partner)

Emmanuel Guillaume is a partner in the Baker & McKenzie’s Paris office, where he advises on new information technologies, competition law, large contracts, public corporate law and environmental law. Prior to joining Baker & McKenzie, he served as Conseil d’Etat (French Administrative Supreme Court and Government legal adviser). He was also a member of various litigation and industry divisions and acted as solicitor in several sectors, including post, telecommunications and environment. He moved to France Telecom in 1990 and served as general counsel and tax director until 2001. Mr. Guillaume provides in-depth knowledge in matters the administration and public sector — as well as in the communication industry — at the national and international levels. He also has extensive experience in the regulation of network activities, including those with respect to energy, transport, post.

Linked authors

JPTT-Vitale (Paris)
Belron (Courbevoie)
Baker Mckenzie (Paris)
Baker Mckenzie (Paris)
GRDF (Paris)
Baker Mckenzie (Paris)
European Commission (Brussels)
Baker Mckenzie (Paris)

Articles

32514 Review

Emmanuel Guillaume, Rémi Ducloyer Financial markets: The French Administrative Supreme Court rules that the sanctions commission of the Financial Markets Authority may reject a settlement agreement ending the administrative prosecution against a credit institution and clarifies the legal framework applicable to such rejection decisions (Président de l’Autorité des marchés financiers / Arkéa Direct Bank)

57

On 20 March 2020, the Litigation Assembly of the Council of State issued a noteworthy decision on the regulation of financial markets, the solution of which is likely to be of interest to sectors other than the one that gave rise to the case in question. The High Court was called upon to rule (...)

Emmanuel Guillaume, Michaël Perche Electricity: The French Administrative Supreme Court considers that parties to a power purchase agreement cannot derogate from the relevant legislation, and in particular from the feed-in tariffs set by ministerial orders (Corsica Sole)

85

Article L.314-1 of the Energy Code, codifying Article 10 of Law No 2000-108 of 10 February 2000, states that: ’Électricité de France (...) [is required] to conclude, if the producers concerned so request, a contract for the purchase of electricity produced on national territory by : (...) 2°) (...)

Emmanuel Guillaume, Rémi Ducloyer Transports: The French Administrative Supreme Court decides that profits resulting from the commercial activities excluded from the regulated perimeter may be taken into account while setting out the tariffs (CSTA)

70

On December 31, 2019, the Conseil d’État ruled on the issues raised by a dispute between the operator of the Nice-Côte d’Azur and Cannes-Mandelieu aerodromes, certain user airlines and their representatives, the State and the regulator over airport charges. It was called upon to rule on requests (...)

Emmanuel Guillaume, Christophe de Saint-Pern Electricity: The French Government decides that once has been reached the threshold of 1,800 MW of installed capacity contracts entered into force and concluded on the basis of the Feed-In Premium Order dated of 13 December 2016, the French incumbent operator will no longer sign new contracts on the basis of this 2016 Feed-In Premium Order (EDF)

60

By a decision of the Minister for Ecological and Solidarity Transition, dated December 19, 2019, the Government stipulated that Electricité de France [EDF] will no longer enter into any additional compensation contracts, pursuant to the Order of December 13, 2016 "setting the conditions for (...)

Emmanuel Guillaume, Michaël Perche Financial markets: The French Administrative Supreme Court upholds the €50 million sanction imposed on a banking establishment due to the inadequacy of its control mechanisms on money orders (La Banque Postale)

96

Article L. 562-2 C. mon. and end. provides that the Minister of the Economy and the Minister of the Interior may decide jointly, for a renewable period of six months, to freeze funds and economic resources "1° that belong to, are owned, held or controlled by natural or legal persons, or any (...)

Emmanuel Guillaume, Rémi Ducloyer Broadcasting: The French Administrative Supreme Court illustrates the legal consequences of the transformation of the regulatory authority into an independent public authority by ruling on actions launched by a television channel operator for the compensation of damages suffered because of the alleged or actual invalidity of sanctions decided by the French Audiovisual Council (C8)

117

Two decisions handed down on November 13, 2019 by the Conseil d’État in disputes between C8, formerly Direct 8 then D8, and the Conseil supérieur de l’audiovisuel (CSA) illustrate the legal consequences, in terms of the liability of regulatory authorities, of the legislative qualification of an (...)

Emmanuel Guillaume, Roman Roussel Electronic communications: The French Administrative Supreme Court defines the margin of interpretation that regulatory authorities have when exercising their power to impose sanctions whilst applying again two of its decisions to guidelines (La Quadrature du Net, Caliopen)

127

Article 82 of Law No. 78-17 of January 6, 1978 relating to computers, files and freedoms, resulting from the transposition into French law of the so-called e-Privacy Directive (2002/58/EC) of July 12, 2002 amended in 2009, states that "Any subscriber or user of an electronic communications (...)

Emmanuel Guillaume, Christophe de Saint-Pern Transports: The French Government keeps transforming the rail transport system, in the context of the fourth European railway package, by adopting a new regulatory framework for setting tariffs for the use of railway infrastructure (SNCF Réseau)

100

The legal framework for infrastructure charges The use of the national rail network by railway companies gives rise to the payment to SNCF Réseau, the Network Manager, of various infrastructure charges, which constitute its main source of revenue (Out of a turnover of €6.496 billion (Bn€) in (...)

Emmanuel Guillaume, Michaël Perche Transports: The French Government entrusts the French Regulatory Authority for Rail and Road Activities with powers previously vested in the Independent Airport Charges Supervisory Authority (Ord. n° 2019-761)

92

As of 1 October 2019, the Regulatory Authority for Rail and Road Activities became the Transport Regulatory Authority. This change of name was accompanied by the attribution of the competences previously vested in the Independent Airport Charges Supervisory Authority, in order to create a (...)

Emmanuel Guillaume, Christophe de Saint-Pern Online games: The French Regulatory of Online Games issues an overall assessment of the Authority’s activity for the past ten years within the context of a reform to come in gambling regulation (Report 2018-2019)

102

Created by Law No. 2010-476 of 12 May 2010, relating to the opening to competition and regulation of the online gambling sector, the Online Gaming Regulatory Authority ("ARJEL") will soon celebrate its 10th anniversary. Published on 7 June 2019, its report for the year 2018-2019 will be the (...)

Emmanuel Guillaume, Michaël Perche Energy: The French Supreme Administrative Court rules on the conventionality procedure applicable before the Dispute Settlement and Sanctions Committee of the French Energy Regulatory Commission in case of refusal to implement a sanction (UFC-Que Choisir)

226

Seized by a consumers’ association with a decision to refuse the member appointed by the CRE’s CoRDiS to follow up on a complaint lodged against ENEDIS, the electricity transmission system operator, the Conseil d’État has, on the one hand considered that the plea alleging breach of the principle of (...)

Emmanuel Guillaume, Roman Roussel Transport: The French Government keeps transforming the rail transport system, in the context of the fourth European railway package, by adopting a new regulatory framework for setting tariffs for the use of railway infrastructures (SNCF Réseau)

164

The Fourth Railway Package, adopted by the European Parliament and the Council of the European Union in 2016, completes the creation of the Single European Railway Area, which was initiated by the liberalisation of rail freight and international passenger services in 2007 and 2010. In (...)

Emmanuel Guillaume, Roman Roussel Impartiality: The French Supreme Administrative Court rules that Article 42-7 of Law no. 86-1907 of September 30th, 1986, which ensures within the French Audiovisual Council an effective separation between the prosecuting and investigating functions on the one hand, and the judging one’s on the other hand, does not violate the principle of impartiality (Comité de défense des auditeurs de Radio Solidarité)

99

The Act of No. 86-1067 of 30 December 1986 relating to freedom of communication gives the Conseil supérieur de l’audiovisuel (CSA) the power to sanction publishers and distributors of audiovisual communication services who do not comply with the formal notices to comply with the obligations (...)

Emmanuel Guillaume, Roman Roussel Impartiality: The French Administrative Supreme Court rules that one can, on the basis of the principle of impartiality, challenge the appointment of members or the president of an independent administrative authority and of an independent public authority (Fédération des médecins de France)

191

The Haute Autorité de Santé (HAS), which helps to regulate the French health system, is an independent public authority, pursuant to article L. 161-37 of the Social Security Code and the provisions annexed to Act No. 2017-55 of 20 January 2017 on the general status of independent administrative (...)

Emmanuel Guillaume, Roman Roussel Sanctions: The French Administrative Supreme Court annuls a decision of the Anti-Doping Agency on the basis of article L. 232-22, ruling that that it cannot decide in lieu of the Agency whether a sanction should be imposed on the interested party (M. A...B...)

109

Under the terms of Article L. 232-22-3° of the French Sports Code, the French Anti-Doping Agency (AFLD) may, on its own initiative, take up and reform disciplinary sanction decisions taken by sports federations in the event of a breach of the rules prohibiting the possession or use of doping (...)

Emmanuel Guillaume, Roman Roussel Data collection: The French Supreme Administrative Court highlights that Article L. 2132-7 of the French Transports Code allows, under courts supervision, the French Regulatory Authority for Road and Railway Activities to request useful information to passenger and freight railway undertakings for the performance of its tasks, provided that such operators do not support an excessive burden (UTP)

148

Law No. 2015-990 of 6 August 2015 for growth, activity and equal economic opportunities has profoundly transformed the authority in charge of regulating the railway sector. Henceforth renamed Regulatory Authority for Railway and Road Activities (Arafer), due to the extension of its field of (...)

Emmanuel Guillaume, Guillaume Léonard Regulatory authority: The French Supreme Administrative Court specifies rules applicable to review of soft laws adopted by regulatory authorities (Bouygues Télécom and Free Mobile)

1985

In its decision Société Bouygues Télécom et société Free Mobile of December 13, 2017, the Conseil d’État further clarified the special judicial review it exercises over "soft law acts" by the regulatory authorities, i.e. acts that are intended to modify or direct the behavior of their addressees (...)

Emmanuel Guillaume, Roman Roussel Airport charges and taxes: The French Supreme Administrative Court dismisses actions on the merits lodged by airlines companies regarding the decision dated of September 1st, 2016, in which the French Independent Supervisory Authority approved Aéroports de Paris’ proposal on airport charges for the 2016 tariff period (Twin Jet)

174

Directive 2009/12/EC of 11 March 2009 on airport charges establishes common rules for the setting of charges to be paid by airport users for the use of airport infrastructure for the operation of aircraft and the handling of passengers and cargo. The directive applies to airports located in the (...)

Emmanuel Guillaume, Pierre-Edouard Pivois Maintaining certification: The Energy Regulatory Commission maintains the certification of one of the two French gas transmission system operators (TSO), following the shareholdings of one of its shareholder in energy production companies (Energy Regulatory Commission Deliberation no 2017-176)

177

In a decision dated 20 July 2017, the French Energy Regulatory Commission (CRE) decided to maintain the certification of one of the two gas transmission system operators (TSOs) in France. The question of maintaining certification arose following two shareholdings by one of the TSO’s shareholders (...)

Emmanuel Guillaume, Roman Roussel Data management: The French Regulatory Commission of Energy adopted the study committee report concerning the data available to managers of energy grids and infrastructures. The report aims to ensure that relevant data management becomes a tool for an efficient energy system (Regulatory Commission of Energy, Deliberation no. 2017-129)

177

I. The legal context The law of 17 August 2015 on the energy transition for green growth, the law of 7 October 2016 for a digital Republic and their implementing decrees have defined the legal and regulatory framework for the management and provision of data collected by energy network (...)

Emmanuel Guillaume Additional sanction: The French Supreme Administrative Court rules that the publication of Independent Administrative Authority’s decisions to impose fines and disciplinary penalties on a company and its manager is an excessive sanction if this publication, available on the Authority’s website in a non-anonymous way, is not of limited duration (Global Patrimoine Investissement)

236

Global Patrimoine Investissement (GPI) offered two products to potential investors, one of which appeared on the list of financial instruments drawn up by Article L. 211-1 of the Monetary and Financial Code. The dispute on the merits In a decision dated 7 June 2016, the AMF Enforcement (...)

Emmanuel Guillaume Communication of administrative documents: The French Supreme Administrative Court specifies the conditions under which a regulatory authority may communicate administrative documents related to a regulated company to competing companies (FM Projet)

146

By decision no. 2011-0668 of June 14, 2011, the Autorité de Régulation des Communications Electroniques et des Postes (ARCEP) had imposed various obligations on France Telecom (now Orange) relating to the local loop as well as to the underground and overhead civil engineering infrastructure (...)

Emmanuel Guillaume, Mélodie Lenglart Matchmaking services: The French Parliament adopts the law regulating the motor-based vehicles for hire sector, thus modifying and completing the legal framework

121

Law n° 2016-1920 of 29 December 2016 relating to regulation, accountability and simplification in the private public passenger transport sector (hereafter the "2016 Law") aims to remedy the complexity and attempts to circumvent the rules resulting from Law n° 2014-1104 of 1 October 2014 relating (...)

Emmanuel Guillaume, Mélodie Lenglart Economic balance of public services: The French Supreme Administrative Court approves for the first time an opinion of the French Regulatory Authority for Rail and Road Activities stating that the opening of new coach lines does not substantially impairs the economic balance of existing transport public services (Région Aquitaine-Limousin-Poitou-Charentes)

125

On this occasion, the Council of State validates the method chosen by ARAFER to verify whether or not the opening of the coach route substantially undermines the economic equilibrium of the public transport service already organised by the transport organising authority and likely to be in (...)

Emmanuel Guillaume, Mélodie Lenglart Closed distribution systems of electricity : The French Government adopts an ordinance regulating “closed distribution systems of electricity” and lays down the legal framework for such systems

200

Article 28 of Directive 2009/72/EC allows Member States to entrust their regulatory authority with the task of classifying a network as a "closed distribution system" and exempting it from a number of obligations applicable to operators of public electricity transmission and distribution (...)

Emmanuel Guillaume, Pierre-Edouard Pivois Legal restrictions : The French Supreme Administrative Court holds that the Law of 2 June 1891 conferring a monopoly for the management of brick-and-mortar bets on horseracing does not disregard the freedoms of movement (M. B.)

145

In the decision commented on, the Conseil d’État had before it an appeal brought by Mr B. challenging the monopoly enjoyed by the Pari mutuel urbain (PMU) on off-racetrack betting "en dur", that is to say, on bets placed at physical commitment points. This monopoly was conferred on it by Article (...)

Emmanuel Guillaume, Pierre-Edouard Pivois Fees : The French Supreme Administrative Court states that the negative binding opinion of the French rail traffic regulator related to the fees of "Gares & Connexions" is legal (SNCF Mobilités)

136

SNCF Mobilités, a public industrial and commercial establishment responsible for operating the network which is part of the SNCF group, sought the annulment of the opinion of 17 February 2015 of the Autorité de régulation des activités ferroviaires et routières (ARAFER) on the draft charges for (...)

Emmanuel Guillaume Regulated tariffs on natural gas: The Court of Justice of the European Union gives an interpretation of the directive 2009/73, which aims to establish a competitive internal market for natural gas in a preliminary ruling about the French regulated tariffs on natural gas (ANODE)

153

This reference for a preliminary ruling was brought by the Conseil d’État in the context of an action brought by the Association nationale des opérateurs détaillants en énergie (ANODE) against Decree No 2013-400 of 16 May 2013 on natural gas TRVs. By way of exception, the ANODE claimed that Articles (...)

Emmanuel Guillaume, Pierre-Edouard Pivois Services to business customers : The French Regulatory Authority for Electronic Communications and Post adopts a decision requiring Orange company to provide, on the business customers market, the same access conditions to telecommunication infrastructures (local loop) for the operators as its own services (Orange)

119

Within the framework set by the Decision of 26 June 2014 (Decision No 2014-0733 on the definition of the relevant wholesale market for offers of access to the physical infrastructure making up the wired local loop, on the designation of an operator exercising significant influence on that (...)

Emmanuel Guillaume Energy: The French Supreme Administrative Court specifies the conditions for admissibility of a legal action against a soft law act from a regulatory authority and sets out the possibility to request its abrogation (GDF Suez)

140

This decision is an opportunity for the Council of State to continue the construction of case law that it began with its decisions of 21 March 2016, Fairvesta Marchés financiers : Le Conseil d’État contrôle la légalité des communiqués de presse de l’Autorité des marchés financiers (Fairvesta (...)

Emmanuel Guillaume, Pierre-Edouard Pivois Regulated electrictiy tarriffs: The French Supreme Administrative Court cancels the ministerial orders fixing the regulated electricity selling prices (ANODE)

133

The Council of State was seized in the first instance at the request of ANODE, and was once again asked to rule on the procedures for setting regulated electricity sales tariffs. The two decisions of the same day censured, for different reasons, the provisions taken in this area by the (...)

Emmanuel Guillaume Mobile network: The French Supreme Administrative Court validates the withdrawal of the operating authorization held by three mobile telephony companies (Guadeloupe Téléphone Mobile)

118

The decision of the Conseil d’État Société Guadeloupe Téléphone Mobile et autres puts an end to a dispute whose outcome (which seems inevitable) has been delayed by changes in the organization of the Autorité de Régulation des Communications Electroniques et des Postes (ARCEP) itself. History of the (...)

Emmanuel Guillaume, Pierre-Edouard Pivois Electronic communications: The French Regulatory Authority for electronic communications and post imposes for the first time a financial penalty to a telecommunications operator which had not contributed to the financing of universal service (Lycamobile)

138

The penalty imposed on the mobile telephone operator Lycamobile demonstrates the Authority’s determination to ensure the proper functioning and sustainability of the universal service financing system. Both the needs of users and the equal conditions of competition faced by telecommunications (...)

Emmanuel Guillaume, Pierre-Edouard Pivois Rail transports: The French government publishes an executive order regarding the construction of a rail infrastructure between Paris and Charles-De-Gaulle airport following the French regulatory body’s opinion

105

The project to build a railway infrastructure linking Paris to Paris-Charles-de-Gaulle airport, known as "CDG Express", which was born almost ten years ago in 2007, had been dormant in the texts for several years. The ordinance adopted on 18 February 2016 relaunches this project by giving it (...)

Emmanuel Guillaume, Mélodie Lenglart End of regulated electricity tariffs: The French Minister of Economics, sustainable development and energy issues its report to the French President regarding the Ordinance of 10 February 2016 on a device guaranteeing continuity of supply of gas and electricity

128

Background reminder Two types of offers currently coexist on the French electricity and gas retail markets. There are, on the one hand, market offers, proposed by all suppliers at freely set prices, and, on the other hand, regulated sales tariffs (TRV) proposed by the incumbent suppliers and (...)

Emmanuel Guillaume, Pierre-Edouard Pivois Transport: The Paris Court of Appeal validates incentive mechanism imposed on French rail network manager SNCF Réseau by the French rail regulator (ARAFER)

166

On 17 December 2015, the Paris Court of Appeal, acting under its power to annul and overturn decisions, which it exercises pursuant to Article L. 2134-3 of the Transport Code, handed down a series of judgments (No 2014/17695, No 2014/17688, No 2014/17680 and No 2014/17660) validating several (...)

Emmanuel Guillaume, Mélodie Lenglart Frequencies 700 MHZ band : ARCEP authorizes by four decisions dated on December 8, 2015, the four French mobile operators to use frequencies in the 700 MHz band in order to operate a mobile radio network accessible to the public (Bouygues Telecom; Free Mobile; Orange; SFR)

148

These decisions mark the culmination of the procedure for the allocation of frequencies, which will be gradually freed up by digital terrestrial television (DTT) and made available to mobile operators between April 2016 and July 2019 (cf. § 1.1 of the specifications appended to the commented (...)

Emmanuel Guillaume, Mélodie Lenglart Telecommunications: The French Postal and Electronic Communications Regulatory Authority specifies the terms and conditions of mast sharing between mobile operators (Free Mobile, SFR)

145

In a decision dated November 3, 2015, the Autorité de régulation des communications électroniques et des postes (ARCEP), before which a dispute between Free Mobile and SFR was settled, specified the conditions for guaranteeing Free Mobile effective and diligent access to SFR’s tower sites. The (...)

Emmanuel Guillaume, Mélodie Lenglart Energy : The French Ministry of Ecology issues a draft order on the additional remuneration and the green electricity purchasing obligation

147

On September 15, 2015, the French Ministry of Ecology, Sustainable Development and Energy (hereinafter the "Ministry") published the draft decree relating to the additional remuneration mentioned in Article L. 314-18 of the Energy Code and the purchase obligation mentioned in Article L. 314-1 (...)

Emmanuel Guillaume, Mélodie Lenglart Hydraulic energy concessions: The law No. 2015-992 of 17 August 2015 on the energy transition and its implementing texts provide a framework concerning the competitive procedure for the award of hydraulic energy concessions

159

Thus, the first calls for tenders planned for 2016 should be organised according to these new rules. Background reminder On the basis of the Law of 16 October 1919 on the use of hydropower, the State entrusted the operation of hydropower plants with a capacity of more than 4500 kW to (...)

Emmanuel Guillaume, Pierre-Edouard Pivois Transport : The French Parliament adopts the law for economic growth, activity and equal opportunities which liberalises the intercity transport

144

Law No. 2015-990 of 6 August 2015 for growth, activity and equal economic opportunities, better known as the Law of the Minister of Economy and Finance, liberalises the interurban road passenger transport sector. The new Article L. 3111-17 of the Transport Code thus provides that "public road (...)

Emmanuel Guillaume, Pierre-Edouard Pivois Postes: The French Postal and Electronic Communications Regulatory Authority delivers an opinion on the cost of universal postal service that includes transport and delivery of press publications (La Poste)

137

ARCEP’s role in accounting matters The Autorité de régulation des communications électroniques et des Postes (ARCEP) has been asked for an opinion by the Minister of Culture, the Minister of the Economy and the Minister of Finance on the costs of the press transport and distribution services (...)

Emmanuel Guillaume, Pierre-Edouard Pivois Broadcasting : The French Supreme Administrative Court annuls the Supreme Audiovisual Council’s refusal to grant DTT authorisation to two channels (LCI, M6, Paris Première)

190

By two decisions of 17 June 2015, Société en commandite simple La Chaîne Info (LCI) (req. no. 384826) on the one hand, and Société Métropole Télévision (M6) and Société Paris Première (req. no. 385474) on the other, the Conseil d’État annulled the decisions of the Conseil supérieur de l’audiovisuel (CSA) (...)

Emmanuel Guillaume Air transport : The French Supreme Administrative Court annuls the Prime Minister’s refusal to repeal the decree appointing the air transport authority as independent supervisory authority (SCARA)

206

Regulatory Context and SCARA’s Recourse Directive 2009/12/EC of 11 March 2009 on airport charges established a common framework for the regulation of airport charges at airports located within the European Union with an annual commercial traffic of more than 5 million passengers (or the highest (...)

Emmanuel Guillaume, Simon Daboussy Transports : The French Supreme Administrative Court validates the analysis of the Railway Operations Regulatory Authority related to the first offer of consecutive cabotage (Région PACA)

254

EC, 30 Jan. 2015, Provence-Alpes-Côte d’Azur Region, No. 374022 On 30 January 2015, the Council of State delivered a judgment in the Provence-Alpes-Côte d’Azur Region (req. No 374022) concerning the opinion of the regulatory authority for railway activities (ARAF) on the impact of the passenger (...)

Emmanuel Guillaume, Mélodie Lenglart Financial markets : The French Supreme Administrative Court annuls the decision of the French Financial Markets Authority in which it suspends the instruction of an application for the extension of authorization (Bernheim Dreyfus)

204

In a ruling dated 26 January 2015 (req. no. 368847), the Conseil d’État annulled a decision of the Autorité des marchés financiers (AMF) that stayed the proceedings on the request for extension of the authorisation submitted by Bernheim Dreyfus & Co. The context of the Bernheim Dreyfus & (...)

Emmanuel Guillaume, Simon Daboussy Railway reform : The French Railway Operations Regulatory Authority issues negative opinions regarding three draft decrees implementing the new law on railway reform

186

ARAF, Opinion No. 2014-023 pdf/araf_2014-023_avis_sncf.pdf, 2014-024 pdf/araf_2014-024_avis_sncfreseau.pdf, 2014-025 pdf/araf_2014-025_avis_sncfmobilites.pdf and 2014-026 pdf/araf_2014-026_avis_fonctionsessentielles.pdf of November 27, 2014 Directive 91/440 of 29 July 1991 established the (...)

Emmanuel Guillaume, Simon Daboussy Nuclear energy : The French Competition Authority delivers its opinion on the draft decree amending the rules of regulated access to historical nuclear energy

158

On October 20, 2014, the French Competition Authority issued Opinion No. 14-A-16 on the draft decree amending Decree No. 2011-466 of April 28, 2011 setting the terms and conditions for regulated access to historic nuclear electricity (ARENH). The case was referred to the Minister of the (...)

Emmanuel Guillaume, Simon Daboussy Access to customer data : The French Competition Authority orders an incumbent gas operator to grant competitors access to customer data (Direct Energie)

201

By this decision of 9 September 2014, the competition authority requires GDF Suez to disclose part of its customer database to its competitors. GDF Suez has announced that the group will appeal this decision to the Paris Court of Appeal, which will have one month to decide. The opening of the (...)

Emmanuel Guillaume, Simon Daboussy Railway activities : The French Competition Authority delivers its opinion on the project relating to separation of accounts for the historical operator’s infrastructure activities

139

On 11 July 2014, the competition authority issued an opinion No. 14-A-09 relating to the proposed accounting separation of SNCF’s infrastructure activity. It was called upon to give its opinion pursuant to Article L. 2133-4 of the French Transport Code, which provides that "the authority (...)

Emmanuel Guillaume, Simon Daboussy Natural gas : The French Energy Regulatory Commission publishes its opinion on the pricing of ancillary services provided by distribution system operators of natural gas

86

In France, natural gas distribution system operators (DSOs) are responsible for transporting natural gas on the distribution networks to final customers on behalf of their users. In addition to transmission services, DSOs may provide ancillary services at the request of suppliers and end (...)

Emmanuel Guillaume, Simon Daboussy Gas rates : The French Energy Regulatory Commission audits procurement and non-procurement costs used as a basis for calculating regulated natural gas sales rates

98

Under the terms of Article L. 445-3 of the Energy Code, "regulated tariffs for the sale of natural gas are defined according to the intrinsic characteristics of the supplies and the costs associated with these supplies. They cover all of these costs, excluding any subsidy for customers who have (...)

Emmanuel Guillaume Electricity : The French Energy Regulatory Commission delivers an opinion on the administrative order of 11 October 2013 modifying the conditions for the purchase of electricity produced by cogeneration (Opinion related to the administrative order of 11 October 2013 modifying the conditions for the purchase of electricity produced by cogeneration)

95

In application of 2° of article L. 314-1 of the Energy Code, cogeneration installations whose installed capacity does not exceed 12 MW benefit from the purchase obligation, as installations implementing high-performance techniques in terms of energy efficiency. The decree of July 31, 2001 set (...)

Emmanuel Guillaume, Simon Daboussy Gas tariffs: The French Energy Regulation Commission issues several decisions regarding the regulated sale prices scales offered by the historical operator while recalling the need to respect the principle of equality

118

CRE, deliberation of 30 October 2013 verifying the compliance of the scale of regulated tariffs for the sale of gas in public distribution proposed by GDF Suez on 1 November 2013 with the tariff formula set by the order of 27 June 2013 CRE, deliberation of November 28, 2013 verifying the (...)

Emmanuel Guillaume Rail transport : The French NRA pronounces four dispute decisions regarding conditions for allowance and follow up of train paths, invoicing and reimbursement of the reservation fees

130

ARAF, 1 October 2013, Dec. No. 2013-017 ARAF, 1 October 2013, Dec. No. 2013-018 ARAF, 1 October 2013, Dec. No. 2013-019 The Autorité de Régulation des Activités Ferroviaires (ARAF), acting on behalf of four companies operating in the rail freight sector (Euro Cargo Rail, Europorte France, T3M (...)

Emmanuel Guillaume, Simon Daboussy Rail activities: The ARAF validates version 2 of the rules for the separation of accounts for the passenger terminals activity of the historical operator

119

Article L. 2123-1 of the Transport Code, resulting from Order No. 2010-1307 of 28 October 2010, requires station management activities, when carried out by SNCF, to be accounted for separately from the operation of transport services. In accordance with Article L. 2133-4 of the same code, also (...)

Emmanuel Guillaume Energy - Gaz: The Council of State overrides the administrative order dated 27 June 2011, 18 July 2012 and 26 September 2012 providing for regulated sale prices for gas from GDF Suez public distribution networks (ANODE)

138

EC, 30 January 2013, National Association of Energy Retail Operators (ANODE), No. 352206 EC, 30 January 2013, ANODE, No. 353356 EC, 30 January 2013, ANODE, No 363571 CE, 30 January 2013, Société GDF Suez, n° 362165 The three decisions of the Conseil d’État of 30 January 2013 are part of a (...)

Emmanuel Guillaume, Simon Daboussy Rail transport: The Court of Justice condemns France for a failure to fulfil obligations resulting from European Union law regarding rail transport (French Republic)

215

On 18 April 2013, the Court of Justice of the European Union (hereinafter CJEU) ruled against France for failure to fulfil its obligations under Union law in the field of rail transport. The European Commission had filed an action for failure to fulfil obligations against France and several (...)

Emmanuel Guillaume, Simon Daboussy Energy - Gas: The French Energy Regulatory Commission issues several decisions regarding regulated sale prices for gas and new applicable tariffs formula

120

After a long series of contentious annulments censoring decrees relating to regulated tariffs for the sale of natural gas supplied from GDF Suez’s public distribution networks (see CE, order, 28 November 2011, ANODE, No. 353554; CE, 10 July 2012, ANODE, No. 353356; CE, order, 29 November 2012, (...)

Emmanuel Guillaume, Simon Daboussy Energy - Natural gas - Regulated prices: The Council of State suspends the administrative order dated 26 September 2012 providing for regulated sale prices for natural gas (ANODE)

143

This Conseil d’État order opens a new chapter in the saga of appeals against the decrees setting the regulated tariffs for the sale of natural gas supplied from GDF Suez’s public distribution networks. The application of the tariff formula provided for in the order of 22 December 2011 was expected (...)

Emmanuel Guillaume, Simon Daboussy Tansports - Rail - Electricity fee: The French NRA specifies rules concerning the supply and invoicing conditions for the supply to the rail operators of electricity for traction

141

Euro Cargo Rail (ECR), as a railway undertaking, has concluded a contract for the use of the national railway network managed by Réseau Ferré de France (RFF) for its freight transport activities. This contract provided for the supply of traction current as an additional service. Railway (...)

Emmanuel Guillaume Energy - Natural gas: The Council of State annuls the decree of 29 September 2011 on regulated tariffs for natural gas supplied from the public distribution networks of the incumbent operator (ANODE)

143

Composed of several alternative suppliers, the national association of energy retail operators (ANODE) had requested in October 2011 the suspension of the Order of 29 September 2011 relating to regulated tariffs for the sale of natural gas supplied from the public distribution networks of GDF (...)

Emmanuel Guillaume Electricity: The standing committee for disputes and sanctions (CoRDiS) of the electricity regulation commission rejects the application of the decree suspending the purchase obligation to connection agreements signed between 2 and 10 December 2010 (Ardennes Energy)

114

Decree no. 2010-1510 of December 9, 2010 ("moratorium decree") suspended the obligation to purchase electricity produced by certain facilities using the radiative energy of the sun for a period of 3 months. However, Article 3 of this decree stipulates that this suspension does not apply to (...)

Emmanuel Guillaume, Simon Daboussy Electricity – Gas: The European Commission gives conditional approval to aid component in regulated electricity tariffs in France and calls on France to revise its system of regulated prices for non-household users

234

Commission press release IP/12/542 of 31 May 2012, Regulated natural gas tariffs in France for non-household consumers, additional reasoned opinion Eur. Comm. press release IP/12/595 of 12 June 2012, regulated electricity tariffs in France, aid C17/2007 At the European level, energy selling (...)

Emmanuel Guillaume, Simon Daboussy Energy – Electricity: The Council of State quashes article 8 of the ordinance dated 9 May 2011 codifying the legal part of the energy code (EDF)

232

CE, March 21, 2012, EDF, n° 349415 In a judgment of 21 March 2012 (req. no. 349415, to be published in Lebon), the Conseil d’État has just annulled Article 8 of Order no. 2011-504 of 9 May 2011 codifying the legislative part of the Energy Code. 1. The origins of Article 8 of the Ordinance of 9 (...)

Emmanuel Guillaume, Simon Daboussy Energy – Electricity: The standing committee for disputes and sanctions (CoRDiS) of the French NRA refuses to characterize as an administrative act the issuance or non-issuance of a technical and financial proposal and to producers to benefit from a derogation to the suspension of purchase obligation (Cap Solar Mazan et al.)

415

CRE CoRDiS, 21 March 2012, Cap Solar Mazan c/ Electricité Réseau Distribution France (ERDF), n° 251-38-11 CRE CoRDiS, 21 March 2012, Cap Solar Montélimar c/ Electricité Réseau Distribution France (ERDF), 257-38-11 ("Bren" project) CRE CoRDiS, 21 March 2012, Cap Solar 82 c/ Electricité Réseau (...)

Emmanuel Guillaume, Simon Daboussy Energy – Electricity: The Council of State leaves to Paris administrative court jurisdiction over request for reimbursement of contribution for the electricity public service (Ciments Calcia)

219

CE, 5 March 2012, Ciments Calcia, No. 346410 As illustrated by the commented judgment of the Conseil d’État of 5 March 2012, the dispute over the decisions of the Commission de régulation de l’énergie (CRE) is becoming increasingly complex. In this case, Ciments Calcia had applied to CRE for (...)

Emmanuel Guillaume, Simon Daboussy Energy – Electricity: The Council of State confirms the validity of a decree suspending the obligation to purchase the electricity generated by some photovoltaic installations (Ciel et Terre)

291

EC, 16 November 2011, Ciel et Terre e.a., No. 344972 The law of 10 February 2000 on the modernisation and development of the public electricity service introduced an obligation to purchase electricity from photovoltaic installations, while leaving the setting of feed-in tariffs to the (...)

Emmanuel Guillaume, Simon Daboussy Postal services: The French NRA fines the incumbent operator for failing to include an offer for the shipment of small items at an affordable price (La Poste)

288

ARCEP, dec. no. 2011-1453 of 20 December 2011 imposing a sanction on La Poste, pursuant to Article L. 5-3 of the French Post and Electronic Communications Code. In a decision dated 20 December 2011, the Autorité de Régulation des Communications Électroniques et des Postes (ARCEP) fined La Poste (...)

Emmanuel Guillaume, Simon Daboussy Rail activities: The French Competition Authority gives its opinion on the draft decree on passenger terminals and on the proposed separation of accounts for the passenger terminals activity of SNCF

435

Concise Aut. opinion No. 11-A-15 of 29 September 2011 on a draft decree relating to passenger stations and other service infrastructures of the railway network Concise Aut. opinion n° 11-A-16 of 29 September 2011 on the proposed separation of accounts for passenger station activities within (...)

Emmanuel Guillaume, Simon Daboussy Energy – Electricity: The French Competition Authority considers not to have jurisdiction over certain practices of French transmission system operator and notes the absence any evidence sufficient to characterize an abuse of dominant position or of economic dependency from the French power operator (EDF and RTE)

569

Aut. conc. dec. no. 11-D-09 of June 8, 2011 concerning practices implemented by EDF and RTE in the electricity sector (See also, supra, "Unilateral Practices" column, obs. F. Marty and, infra,"Public Sector" column, obs. J. Ph. Kovar) The Syndicat National des Producteurs Indépendants (...)

Emmanuel Guillaume, Simon Daboussy Energy – Gas: The standing committee for disputes and sanctions of the electricity regulation commission sanctions the natural gas transmission system operator for the failure to respect its obligation of transparency and precises the load of connection activities belonging to each party of the connection agreements (SICAE - Somme and Cambraisis/GRTgaz)

575

CoRDiS of the CRE, dec. of April 29, 2011 on the dispute between the SICAE de la Somme et du Cambraisis and GRTgaz concerning the application of contracts relating to the interface between transmission and distribution operators, to the services provided by the SICAE de la Somme et du (...)

Emmanuel Guillaume, Simon Daboussy Energy – Electricity: The standing committee for disputes and sanctions of the electricity regulation commission reviews the details of enforcement of the provisions stating for disjunction hours of the intermittent electricity production facilities (Volta Guyane/EDF and Voltalia Organabo Investissements/EDF)

709

CoRDiS of the CRE, dec. of March 28, 2011 on the dispute between Voltalia Organabo Investissements and EDF CoRDiS of the CRE, dec. of March 28, 2011 on the dispute between Volta Guyane and EDF It results from the initial drafting of the provisions of Articles 19 and 22 of the Order of 23 (...)

Emmanuel Guillaume Energy – Electricity: The standing committee for disputes and sanctions of the French NRA considers that it has no jurisdiction over a dispute aiming at obtaining the granting of an electricity purchase fee (Nicodis/ERDF)

666

CoRDiS of the CRE, dec. of January 21, 2011 on the dispute between Nicodis and Électricité Réseau Distribution France (ERDF) Pursuant to Article 38 of Act No. 2000-108 of 10 February 2000 on the modernisation and development of the public electricity service, the Dispute Settlement and Sanctions (...)

Emmanuel Guillaume Energy - Electricity price : The Council of State overrides the administrative order dated 12 August 2008 dealing with electricity price as far as it did not provide for a higher level of increase for the yellow and green regulated tariffs of electricity (Poweo)

1113

EC, 1 July 2010, Poweo, n° 321595 At the request of the Poweo company, the Council of State, in a ruling dated 1 July 2010, annulled the order of 12 August 2008 relating to the price of electricity in so far as it did not set the increase in the regulated yellow and green electricity tariffs at (...)

Emmanuel Guillaume Energy - Photovoltaic solar energy: The Government, Legislator and Council of State rule on legal issues related to photovoltaic solar energy (Bioenerg ; Green Yellow/EDF)

1514

CE, July 1, 2010, Bioenerg Company, n° 333275 Law No. 2010-788 of 12 July 2010 on the national commitment to the environment, known as "Grenelle 2", JORF No. 160 of 13 July 2010, p. 12905. Decree No. 2010-1510 of 9 December 2010 suspending the obligation to purchase electricity produced by (...)

Emmanuel Guillaume Railway activities: The French NRA issues its first opinion regarding the fee for the use of the national railway infrastructure (High Speed Line South Europe Atlantic)

665

ARAF, notice no. 2010-010 of 8 December 2010 concerning the tariff provisions set out in the draft public service delegation contract for the LGV Sud Europe Atlantique high-speed line between Tours and Bordeaux. The Autorité de régulation des activités ferroviaires (ARAF), created by law no. (...)

Emmanuel Guillaume Transports - Separations of the activities: The French Competition Authority recommends on its own motion that the management of the train stations should be more separated from the other activities of the SNCF

2349

Concise Aut. opinion No. 09-A-55 of 4 November 2009 on the public land passenger transport sector The French Competition Authority has decided, on the occasion of an ex officio referral, to call for a stricter separation between the mission of railway station management and the other (...)

Emmanuel Guillaume, Valérie Kostrzewski-Pugnat Food - Contractual process between producers and industrialists: The French Competition Authority suggests solutions to remedy the dairy sector’s malfunctions and recommend a contractual process between producers and industrialists (Milk sector)

2172

Concordant Aut. opinion No 09-A-48 of 2 October 2009 on the functioning of the dairy sector On October 2, 2009, the French Competition Authority issued an opinion on the functioning of the milk sector in France. The case was referred to the French Senate’s Economic Affairs Commission pursuant (...)

Emmanuel Guillaume, Valérie Kostrzewski-Pugnat Sports - Practices in the marketing of sports TV rights: The French Competition Authority heavely sanctions restricting practices in the marketing of sports TV rights (French Football Federation)

2772

Aut. conc., Dec. No. 09-D-31 of 30 September 2009 relating to practices implemented in the management and marketing of the sports rights of the French Football Federation (FFF) By heavily sanctioning the French Football Federation (FFF) and the company Sportfive for having for many years (...)

Emmanuel Guillaume, Jean-Paul Tran Thiet Energy - Evaluation of the costs of the public utility of the electricity: The Council of State judges that the energy regulator must comply with the strict limits of its jurisdiction on concerning assessment of cost incurred by public service obligations (Électricité de Strasbourg)

2017

EC, 31 July 2009, Electricité de Strasbourg, n° 307223 In its ruling of July 31, 2009 (CE July 31, 2009, No. 307223), following a request from SA Électricité de Strasbourg, the Conseil d’État recalled the limits of CRE’s jurisdiction with regard to determining the amount of charges related to the (...)

Books

Send a message