On September 16, 2020, the French Cour de cassation upheld the Paris Court of Appeals’ judgment, which had largely confirmed the French Competition Authority’s (the “FCA”) decision in the TDF case.
In June 2016, the FCA fined TDF €20.6 million for abusing its dominant position on the wholesale market for terrestrial broadcasting services between 2006 and 2010.
The FCA found that TDF, a former state monopoly, held a dominant position on both the upstream and downstream wholesale markets for terrestrial broadcasting services.
On the upstream market, broadcasting operators that own tower sites offer hosting services to broadcasting operators that do not own such infrastructure. Local authorities must authorize them to build pylon sites capable of hosting broadcasting equipment.
On the downstream market, broadcasting operators offer broadcasting services to television channels, grouped in multiplexes (“MUX”).
Following a complaint by a competitor, the FCA found that TDF had (i) offered per se anticompetitive exclusivity rebates to MUX and (ii) engaged in denigrating conduct by warning municipalities that the installation of competing broadcasting towers could interfere with TDF’s existing broadcasting services. TDF appealed.
In 2017, the Paris Court of Appeals largely confirmed the FCA’s decision. However, it (i) rejected the FCA’s qualification of TDF’s rebate scheme as per se illegal and (ii) annulled the objection relating to denigrating practices, which led to a reduction of TDF’s fine to €17.2 million. Both the FCA and TDF appealed.
On September 16, 2020, the Cour de cassation upheld the Paris Court of Appeals judgment in its entirety.
The Cour de cassation confirmed the Paris Court of Appeals’ finding that the rebate scheme implemented by TDF was not per se illegal. TDF’s exclusivity rebate scheme was indeed based on a different geographic scope than that of the dominated market. Eligibility for rebates was assessed at a local level, whereas TDF was considered dominant on the national market for downstream wholesale broadcasting services. The Cour de cassation thus considered that the rebate scheme did not fall within the scope of the per se illegal exclusivity rebate concept, as defined by the European Court of Justice, and could therefore not be presumed to be anticompetitive.
It nevertheless confirmed that the rebate scheme was anticompetitive due to its effects. Though the relevant market was defined nationally, the Paris Court of Appeals analyzed TDF’s position at a local level because the effects of the rebate scheme were local in scope. It concluded that TDF was dominant in each local area of the rebate scheme, and that the rebate scheme had the effect of inciting customers to contract exclusively with TDF in each area.
The Cour de cassation confirmed that denigration could not be established. It considered that the litigious emails merely presented a risk to municipalities that the construction of a broadcasting tower in close proximity to an existing tower could lead to interference, without explicitly citing any competitors. It acknowledged that the information provided in the emails was incomplete, and therefore misleading, but considered that this was not enough to constitute denigration, despite the fact that the identity of TDF’s competitors was obvious given existing market concentration.
With regard to loyalty rebates, in line with EU precedents, the Cour de cassation has considered that for a rebate to be per se anticompetitive, the eligibility of the rebate must have the same geographic scope as the dominated market. When that is not the case, a case-by-case assessment must be carried out. In the case of local rebate schemes, the customer’s behavior in one local area does not affect eligibility for the rebate in another area, and therefore dominance must be assessed in each local area before reaching a conclusion as to the abusive nature of the rebate.
As for denigration, while the FCA has been at the forefront of developing theories of harm as a result of denigration in pharmaceutical abuse of dominance cases, the ruling shows that the precise contours of denigration abuses are yet to be defined, in particular in non-pharmaceutical cases.
 Paris Court of Appeals, December 21, 2017, case no. 16/15499, para. 212.
 Paris Court of Appeals, December 21, 2017, case no. 16/15499, paras. 202-204, on the basis of the judgment of February 13, 1979, Hoffmann-La Roche v. Commission, C-85/76, ECLI:EU:C:1979:36, and the judgment of September 6, 2017, Intel v. Commission, C-413/14P, ECLI:EU:C:2017:632. In these cases, eligibility for rebates was assessed on the same market as the market on which the undertakings were dominant, the community-wide vitamins A, B2, B6, C, E, and H markets in Hoffmann-La Roche, and the worldwide x86 CPUs market in Intel. The exclusivity rebates in these cases were presumed to be anticompetitive.
 French Cour de cassation, September 16, 2020, Judgment n° 18-11.034 , para. 10.
 French Cour de cassation, September 16, 2020, Judgment n° 18-11.034 , para. 8.
 Paris Court of Appeals, December 21, 2017, case n° 16/15499, para. 133. For instance, the interference would in practice have been easily resolved and service disruption limited.
 French Cour de cassation, September 16, 2020, Judgment n° 18-11.034 , para. 25.
 Judgment of February 13, 1979, Hoffmann-La Roche v. Commission, C-85/76, ECLI:EU:C:1979:36, and judgment of September 6, 2017, Intel v. Commission, C-413/14P, ECLI:EU:C:2017:632.
 See inter alia FCA decision No. 13-D-11 relating to practices implemented in the pharmaceutical sector (Sanofi-Aventis); and FCA decision No. 17-D-25 of December 20, 2017, relating to practices implemented in the transdermal fentanyl products sector (Janssen-Cilag).