On February 18, 2021, the FCA announced that it had denied interim measures requested by Plüm Energie, a competing electricity supplier, to prevent Électricité de France (“EDF”) from allegedly abusing its dominant position in the French market for the supply of electricity.
However, the FCA decided to continue the investigation on the merits.
In September 2020, Plüm Energie filed a complaint with the FCA against EDF for abuse of a dominant position. According to Plüm Energie, EDF was charging prices lower than the costs it incurred when bidding for tenders issued by local and regional authorities, which allegedly constituted predatory pricing.
Additionally, Plüm Energie sought interim measures from the FCA. Those measures aimed to (i) have EDF cover its costs in its responses to calls for tenders, (ii) appoint an independent trustee to conduct ex ante compliance assessments of EDF’s offers, and (iii) require EDF to submit a monthly report to the FCA and the French Energy Regulatory Commission (“Commission de régulation de l’énergie”) showing that its commercial and pricing policy complies with competition rules.
The FCA’s decision
In order to issue interim measures, the FCA must find that the company’s conduct (i) likely infringes competition rules and (ii) causes serious and immediate harm to the general economy, the relevant sector, consumers, or the complainant’s interests.
In the Decision, the FCA found that EDF was dominant on the French market for the retail supply of electricity to non-residential customers, as it supplies 60 to 70% of the electricity on this market. EDF further enjoys significant competitive advantages as the incumbent operator (i.e., brand image, geographic presence, and reputation).
The FCA then recalled that the price policy of a dominant undertaking must be assessed on the basis of several criteria, including the prices it charges and the costs it incurs. The FCA explained that, at this stage, it could not exclude that EDF did not cover its costs with respect to several activities. The FCA thus indicated that it would continue its investigation on the merits.
However, the FCA found that the alleged practices did not cause serious and immediate harm to the economy or the complainant’s interests.
With regard to the damage to Plüm Energie, the FCA found that there was no evidence that the complainant’s losses resulted from the prices offered by EDF. In particular, based on bidding data, the FCA found that Plüm Energie had not been EDF’s runner-up in certain calls for tenders won by EDF and thus was not even in a position to win had EDF not submitted a bid. The FCA also found that Plüm Energie had already won major tenders against EDF and maintained a stable success rate.
With regard to the damage to the economy, the FCA concluded that Plüm Energie had failed to adduce sufficient evidence showing that small competitors would be foreclosed from the market in the short term due to EDF’s conduct. Nor did it prove that larger competitors, such as ENGIE and Total Direct Énergie, would also be driven out of the market, especially as they benefit from a significant critical mass enabling them match EDF’s low prices.
The FCA therefore dismissed Plüm Energie’s request for interim measures and decided to continue its investigation on the merits.
 FCA Decision no. 21-D-03 of February 18, 2021, regarding a request for interim measures by Plüm Energie in the sector of the supply of electricity in France (the “Decision”).
 FCA Decision, paras. 27–28.
 FCA Decision, para. 29.
 See Article L. 464-1 of the French Commercial Code.
 FCA Decision, paras. 46, 55, 62.
 FCA Decision, paras. 64–66.
 FCA Decision, paras. 80–83.
 FCA Decision, paras. 89 and 91.
 FCA Decision, paras. 97–99.