Current developments in the assessment of competitive harm through the Digicel case and the decision of the Court of Cassation of 1 March 2023 (judgment No. 160-FS-B)
Sorgem Evaluation assisted the plaintiffs, SA DIGICEL Antilles Françaises Guyane, in a dispute with Orange SA and Orange Caraïbe SA.
On 1 March 2023, the French Supreme Court (Cour de Cassation) ruled that Orange should pay €181.5m in damages to BTC/Digicel. This decision is one of the most important private enforcement decisions in France, for which Sorgem Evaluation assisted the plaintiffs.
The practices condemned consisted of an abuse of a dominant position by Orange and France Télécom. This practice hampered the development of BTC/Digicel and led to additional costs, in particular through exclusivity clauses in favor of the sole approved repairer and through a subscriber loyalty program leading to an abusive price differentiation between on-net calls (to its network) and off-net calls (to a competitor’s network). As a result, BTC/Digicel’s market share stagnated, “disregarding the normal progression that should have been expected of a second entrant to a mobile telephony market“. Sorgem had also shown that market shares had increased since the end of the practices and that this increase should normally have occurred earlier.
These practices were the subject of precautionary measures and injunctions issued by the Conseil de la Concurrence (French Competition Council), followed by a writ of summons seeking compensation for the harm caused by the practices identified, which led the Paris Court of Appeal to order SA Orange Caribbean and SA Orange to pay €181.5 million to the plaintiffs.
The Court of Cassation’s decision sheds light on a number of methodological issues: digicel c orange site_