On December 20, 2023, the French Competition Authority (“FCA”) fined Sony EUR 13.5 million for allegations of abuse of dominant position in the supply of video game controllers for its PlayStation 4 (“PS4”) console between November 2015 and April 2020.[1]


On October 20, 2016, a French manufacturer of video game controllers, Subsonic, referred to the FCA certain practices allegedly implemented by Sony. A year later, the FCA sent Sony a preliminary report outlining competition concerns with respect to: (i) technical measures put in place by Sony since November 2015 to fight against allegedly counterfeit controllers, and (ii) Sony’s refusal to grant licences to certain controller manufacturers under its PS4 Official Licensed Product partnership programme (“OLP programme”).

Sony sent proposed commitments to the FCA on four occasions in November 2019, June, July and September 2020. All were rejected by the FCA, which resumed the investigation[2] and subsequently sent Sony a statement of objections on July 15, 2021.

The FCA ultimately found that Sony had abused its dominant position on the French market for PS4 video game controllers by: (i) having put in place certain technical measures that disconnected controllers not manufactured or licensed by Sony from the PS4 console, and (ii) having an opaque licensing policy.

Sony’s dominance on the French market for PS4 video game controllers

The PS4 was commercially launched in 2013 and is Sony’s eighth-generation console. It comes with a PS4 controller called a DualShock 4, designed by Sony and also sold separately. It’s Sony’s best-selling console accessory: according to the FCA, PS4 controllers manufactured by Sony represent a market share of “well over 50% for the period 2015-2020”.

Technical measures to fight against counterfeit controllers were disproportionate and discriminatory

PS4 controllers may be manufactured by Sony, by Sony licensees, or by unlicensed third parties. Controllers of the first two categories contain a chip with a unique identification number (“ID number”) that Sony can, in principle, use to identify them.

The FCA found that Sony caused controllers without this unique ID number or controllers with a number duplicated on a large scale, to be disconnected during certain technical updates to the PS4 console. The latter were only able to correct these disconnections a posteriori and through patches which were difficult to install.

The FCA found that even though Sony was pursuing a legitimate objective to protect its IP rights, these measures were disproportionate. First, all controllers manufactured by third parties outside of the OLP programme were affected, regardless of whether they were counterfeit or not. Second, the FCA noted that Sony went beyond what was strictly necessary to pursue its IP rights protection objective, since it should have, in the first instance, brought legal proceedings against the alleged counterfeits.

Sony’s opaque licensing policy prevented rival companies from obtaining an official licence and unique ID numbers

The FCA noted that while Sony reserved the granting of licences and ID numbers to members of the OLP programme, the criteria for access to said programme were not communicated to all manufacturers who requested them, such as Subsonic, and were imprecise enough to lend themselves to discretionary application. Consequently, the FCA found that several manufacturers wishing to join the OLP programme were not able to do so, and that their brand image suffered as a result of the multiple disconnections resulting from the regular software updates.

Ultimately, the FCA found that users had been discouraged from buying controllers not covered by the OLP programme and would inevitably switch to controllers manufactured by Sony or Sony licensees.


With respect to substantive considerations, the FCA Decision provides a reminder that an objective to protect IP rights may not justify anticompetitive conduct.

With respect to procedural considerations, the case raised a number of procedural issues. The first was whether a decision by the FCA to refuse commitments could be subject to judicial review. The second was whether the French commitments procedure breaches a party’s rights of the defence, given that FCA agents deciding whether to accept or reject commitments are also involved in assessing whether the practices under investigation constitute a competition infringement. Both issues were heard by the French Constitutional Council, which found that a decision by the FCA to accept or reject commitments did not breach a party’s rights of the defence and was indeed subject to judicial review.[3] 

Based on the French Constitutional Council’sdecision, on January 31, 2024 the French Cour de cassation overturned the Paris Court of Appeals judgement[4] which had ruled that an appeal of the FCA’s refusal to accept commitments was inadmissible, and  ordered that the case be remitted for consideration.[5] The Paris Court of Appeals will now examine whether Sony’s proposed commitments were sufficient to remedy the competitive concerns identified by the FCA and, in the negative, set aside the FCA decision to reject the commitments and refer the case back to the FCA.

[1]           FCA Decision No. 23-D-14 of December 20, 2023, regarding practices implemented in the sectors for eighth-generation static video game consoles and the control accessories compatible with the PS4 console.

[2]           FCA Decision No. 20-S-01 of October 23, 2020.

[3]           Constitutional Council Decision No. 2002-1035 QPC of February 10, 2023, Société Sony interactive entertainment France et autre. For further details, see the French Competition Law Newsletter, February 2023 edition, available at: https://www.clearygottlieb.com/-/media/files/french-competition-reports/french-competition-newsletter-feb-2023.pdf.  Sony had filed two parallel and distinct appeals against the FCA decision rejecting its proposed commitments: the first one before the French Conseil d’Etat, which found it did not have jurisdiction to hear the matter (see Conseil d’Etat, Decision No. 448061 of July 1st, 2022), and the second one before the Paris Court of Appeals, which ruled that the appeal was inadmissible as the lack of immediate relief against this FCA decision did not deprive Sony of its right to effective judicial review since the final FCA decision could be appealed (see Paris Court of Appeals Judgment No. 20/169537 of April 21, 2022). Sony subsequently filed an appeal against this judgement before the French Cour de cassation, asking that the case be deferred to the French Constitutional Council.

[4]           Paris Court of Appeals Judgement No. 20/169537 of April 21, 2022.

[5]           French Cour de cassation, Decision No. R-22-16-616 of January 31, 2024.