On October 5, 2020, the French Tribunal des Conflits confirmed that the Paris Court of Appeals had jurisdiction to rule on the appeal lodged by Google against an FCA interim measures decision, in which Google alleged that the FCA had breached its right to the protection of business secrets by publishing information that had previously been granted confidential treatment by the investigation services.[1]

In France, the Tribunal des Conflits is in charge of adjudicating possible conflicts of jurisdictions between administrative and civil courts. The Tribunal’s ruling relates to Decision no. 19-MC-01 issued by the FCA on January 31, 2019, in which the FCA found that certain practices implemented by Google with respect to Amadeus (a company offering directory enquiry services), potentially amounted to an abuse of dominant position. The FCA therefore ordered Google to implement four sets of interim measures aimed at clarifying the rules of its advertising service Google Ads and the suspension of advertisers’ Google Ads accounts.[2]

On appeal before the Paris Court of Appeals, Google claimed that the interim measures imposed by the FCA were disproportionate and should consequently be annulled. In addition, Google asked the Court of Appeals to order the FCA to publish a new version of the interim measure decision, as the version published on January 31, 2019 disclosed several Google business secrets that had been granted confidential treatment by the FCA investigation services. According to Google, by failing to protect its business secrets in the public version of the decision, the FCA’s Collège had frustrated the purpose of the protection granted during the investigation phase.

In a ruling dated April 4, 2019, the Paris Court of Appeals mostly upheld the interim measures, but held that it did not have jurisdiction to decide whether the FCA’s Collège had indeed deprived the applicable rules on the protection of business secrets of their effectiveness nor did it have jurisdiction to order the publication of a new version of the FCA’s decision.[3] As a result, Google filed a claim before the Conseil d’Etat (the highest administrative court in France), which also declined jurisdiction and referred the case to the Tribunal des Conflits. According to the Conseil d’Etat, the publication of an FCA decision cannot be considered separately from the decision itself; therefore, the jurisdiction of the Paris Court of Appeals’ should extend to such matters.[4]

In its October 5, 2020 decision, the Tribunal des Conflits essentially upheld the Conseil d’Etat’s reasoning, and held that challenges relating to the publication of an FCA decision should be heard by the Paris Court of Appeals. In the meantime, the FCA has not taken any steps to remove Google’s business secrets from the public version of the decision. Interestingly, however, the FCA has now modified its practice in some cases and tends to ask the Parties to identify their business secrets prior to the publication of antitrust decisions.

[1]              Tribunal des Conflits, ruling of October 5, 2020, no. 4193.

[2]              FCA Decision no. 19-MC-01 of January 31, 2019, regarding a request for interim measures filed by Amadeus, available at: https://www.autoritedelaconcurrence. fr/sites/default/files/commitments//19mc01.pdf.

[3]              Paris Court of Appeals, ruling of April 4, 2019, no. 19/03274.

[4]              Conseil d’Etat, ruling of March 30, 2020, no. 429279.