On December 6, 2022, the French Competition Authority (“FCA”) issued a decision rejecting TDF’s request to lift the commitments it had entered into in 2015 regarding abuse of dominance practices on the market for hosting mobile network antennas on pylon sites (the “Decision”).[1] The FCA rejected this request due to lack of evidence that the competition concerns identified in 2015 have disappeared.
On October 20, 2022, for the first time, the French Competition Authority used its newly-acquired ability to reject a claim on the basis of enforcement priority and rejected Culture Presse’s claim in relation to an alleged abuse of a dominant position by La Poste in respect of postal stamps distribution.[1] Since the transposition into French law of the ECN+ Directive[2] and pursuant to the second paragraph of Article L. 462-8 of the French Commercial Code, the Competition Authority no longer has an obligation to investigate, and may now, by way of a reasoned decision, reject a complaint where it is not considered an enforcement priority.
On October 19, 2022, the Cour de cassation dismissed[1] an appeal brought by Carrefour against two decisions of the Paris Court of Appeals, which rejected its follow-on damage claim against Johnson & Johnson Santé Beauté France (“Johnson & Johnson”) in relation to its participation to the home and personal care cartel.[2]
On October 6, 2022, the French Competition Authority (the “FCA”) imposed a €81 million fine on Essilor International SAS (“Essilor”) for having engaged in discriminatory trading practices aimed at hindering the development of e-commerce for optical lenses in France between April 2009 and December 2020.[1] Essilor’s parent company, EssilorLuxottica, was fined €15.4 million jointly and severally with its subsidiary and announced its intention to appeal the decision.[2]
In a joint statement released on September 16, 2022,[1] TF1 and M6, the two main free-to-air television operators in France, announced their decision to abandon their merger project (the “Transaction”). Despite offering several commitments during an in-depth investigation, TF1 and M6 came to the conclusion that the divestitures required by the French Competition Authority (the “FCA”) would too strongly affect the transaction’s rationale. The FCA released on the same day a press release to “take note of the decision to withdraw [the] planned acquisition”[2], in order to publicly clarify its position.
Appointment of a sustainability expert
As of September 1, 2022, Elise Provost was appointed first formal head of the French Competition Authority’s (the “FCA”) sustainable development network. Since this network is also responsible for flagging sustainability-related cases to the FCA’s General Rapporteur (i.e., the head of the FCA’s investigation unit), Elise Provost was also appointed adviser to the General Rapporteur as of September 1, 2022.
Background
On July 13, 2022, the French Competition Authority (“FCA”) published an interim document for public consultation on competition in the cloud computing sector as part of a sector inquiry launched in January 2022.[1] The FCA’s investigation seeks to delineate the relevant markets for cloud computing services, identify actors that may enjoy “particular positions”[2] on the market, and assess practices that could hinder competition on the merits in an industry projected to expand in France by 14% annually to reach €27 billion by 2025.[3] The consultation closed on September 19, 2022, and the FCA has announced its final conclusions for early 2023.[4]
On July 6, the French Competition Authority (“FCA”) published its annual report for the year 2021.[1] In particular, the report highlights (i) the key figures of the FCA activity in 2021, (ii) the reinforced investigative powers of the FCA and (iii) the roadmap for 2022-2023.
On July 1, 2022, the Conseil d’Etat (the French administrative supreme court) ruled[1] that it had no jurisdiction to annul a decision of the French Competition Authority (the “FCA”) rejecting commitments offered by the group Sony (“Sony”) to end competition proceedings and referring the case back for further investigation.[2]
On June 16, 2022, the Paris Court of Appeals (the “Court”) ruled that “decisions to protect the confidentiality of business secrets taken during the course of the investigation, which have not been challenged pursuant to Article R. 463-15 of the French Commercial Code, continue to bind the College when adopting and drafting the decision on the merits, otherwise such decisions would be deprived of any effectiveness” (the “Ruling”).[1]