On March 1, 2023, the French Cour de Cassation (i.e., the French Civil Supreme Court) upheld the Paris Court of Appeals’ (“Court of Appeals”) judgment awarding Digicel €180 million in damages for harm suffered as a result of anticompetitive practices implemented by Orange from 2000 to 2006 in the mobile telephony sector in the French West Indies and Guyana. However, the Cour de Cassation quashed the Court of Appeals’ finding that interest on the damage award should run from April 1, 2003, given that the harm inflicted to Digicel had not fully materialized at that date.
In 2009, the French Competition Authority (“FCA”) fined Orange (then France Telecom) and Orange Caraïbe €63 million for impeding competition in the mobile telephony market in the French West Indies and Guyana between 2000 and 2006. The FCA found that Orange Caraïbe, the incumbent operator at the time, had engaged in practices that hampered the development of competition in the mobile telephony sector and raised barriers to entry for competitors, including Bouygues Telecom (which later sold its Caribbean operations to Digicel).
These practices included (i) exclusive agreements with independent local distributors and with the only authorized repair center for cell phones in the Caribbean, (ii) a customer loyalty program discouraging consumers from switching mobile operators at the end of their subscription period, and (iii) price discrimination between calls within the Orange network and calls to other networks. The FCA also found that France Telecom had unduly favored its subsidiary Orange Caraïbe by implementing a loyalty program allowing business customers to make free fixed-line calls to the Orange Caraïbe network and engaging in margin squeeze.
Following the FCA’s Decision, Digicel filed an action for damages totaling €494 million. In June 2020, on appeal of a first instance judgment of the Paris Commercial Court, the Paris Court of Appeals ordered Orange and its subsidiary Orange Caraïbe to pay Digicel €181.5 million in antitrust damages and €68 million in interest. Orange and Digicel appealed the ruling to the Cour de Cassation.
The French Cour of de Cassation’s ruling
First, the Cour de Cassation upheld the Court of Appeals’ assessment of the causal link between Orange’s anticompetitive practices and the harm suffered by Digicel. The Cour de Cassation confirmed in particular that the Court of Appeals had rightly performed (i) a comparative assessment of Digicel’s market shares during and after the implementation of Orange’s practices and of market dynamics in similar markets, and (ii) an analysis of Digicel’s commercial strategy in order to determine if it could be an alternative explanation for Digicel’s underperformance during the infringement period.
Second, the Cour de Cassation held that the Court of Appeals had appropriately balanced the parties’ competing expert submissions on the relevant margin to be used to quantify the harm, and that it had correctly sided with one of the two diverging analyses submitted by the parties.
Third, on the nature of the harm suffered, the Cour de Cassation held that the Court of Appeals was entitled to consider that the various anticompetitive practices cumulated and reinforced each other over time to ultimately result in a single obstacle to Digicel’s growth. In addition, the Cour de Cassation held that the Court of Appeals was right to find that the harm suffered by Digicel was not lost opportunity but lost profit which therefore needed to be compensated in full. This is because the anticompetitive practices had actually limited Digicel’s sales, and this sales loss had been reconstituted. On the quantification of such harm, the Cour de Cassation held that the Court of Appeals rightly performed a dual counterfactual analysis based on a comparison over time (before/after the practices) and with similar geographic areas, and that the Court of Appeals retained the lowest of the two estimates.
Finally, regarding the calculation of interest on the damage award, the Cour de Cassation held that the Court of Appeals had erred in retaining April 1, 2003 as the starting point for the accrual of the interest because the harm that the award was intended to compensate, which necessarily occurred progressively during the infringement period, had not fully materialized at that date. Accordingly, the case was remanded to the Court of Appeals on this issue.
 Cour de Cassation ruling, March 1, 2023 (No. 20-18.356) (the “Judgment”).
 FCA Decision No. 09-D-36 of December 9, 2009 relating to practices implemented by Orange Caraïbe and France Telecom in various telecommunication services markets in the overseas territories of Martinique, Guadeloupe and Guyana.
 Paris Court of Appeal, ruling of June 17, 2020 (No. 17/23041). This judgement overturned the initial Commercial Court ruling, December 18, 2017, (No. 2009/016849), SA Digicel Antilles Françaises Guyane c/ SA Orange Caraïbe, SA Orange. For a further analysis on this, see Cleary Gottlieb Antitrust Watch, The Paris Court of Appeals Orders Orange To Pay Over €180 Million in Follow-on Antitrust Damage Claim, June 17, 2020.
 The Court of Appeals awarded €173.4 million in compensation for the lost profit; €7.12 million for extra costs relating to exclusivity agreements and €737,500 for extra costs generated by the exclusivity clauses with the authorized repair center, for a total of approximately €181.5 million.
 Orange argued on appeal that the Court of Appeals had not established this causal link.
 Judgment, paras. 12-13.
 Judgment, paras. 16-19.
 Orange sought to argue that Digicel had not adduced economic evidence of the harm it suffered for each of the individual practices.
 Compensation of a lost opportunity would have required a downward adjustment of the damages award based on the probability that Digicel would have realize the opportunity, whereas compensation of a lost profit requires full compensation of the lost opportunity.
 Judgment, paras. 22-25. However, the Cour de Cassation, rejected Digicel’s claim that it should also be compensated for the lost opportunity to reinvest its lost income as there was no “direct and certain” evidence of the reality of the investment that Digicel would otherwise have or Digicel’s inability to secure financing elsewhere (Judgment, paras. 37-38).
 Judgment, para. 49.