Extract
[...] This shows that the 2010 ruling not only inserts itself into a jurisprudential context in which it results from the office of the judge of cassation to verify the impact of its decision on the economy, but it also inserts itself into a context of conformity with European law, and, in particular, European competition law B. The aftermath of a long and complex judicial debacle in conformity with an increasingly European competition law However, the litigation will not stop here15. The aftermath of this case, which seemed to have no end, is indeed found in a new ruling two years later. Newly seized in cassation, the Court will have to pronounce a third time on this case. [...]
[...] The necessary demonstration of the sensitivity of demand to price, a determining criterion for the existence of damage to the economy By its judgment, the Commercial Chamber of the High Court rejects the argument thatthe existence of damage to the economy is presumed in the case of a cartel», and it comes to add that, among the elements to be considered to measure the damage caused to the economy, one must certainly take into account the size of the affected market and the involvement of all suppliers on the market in the exchange of information», also the criterion ofthe demonstration of a low sensitivity of demand to prices ». Therefore, in taking its decisionwithout also taking into account the sensitivity of demand to price», the Court of Appeal did not base its decision on a legal basis and is, as a result, at risk of being overturned. This reasoning is not new. [...]
[...] Mobile phone agreements, a complex but clear competition dispute The question of anti-competitive agreements set up by the three French mobile phone operators is inserted into the context of competitive practices and the ruling, thus contextualized, comes to specify that the damage caused by the agreement cannot be presumed, but that the proof of the sensitivity of demand to price is an essential element in its evaluation as the Competition Council had already specified, contrary to the reading that was made by the appellate judges. A. An anti-competitive practice due to the agreement between operators on an oligopolistic market This ruling is inserted into a particularly complex context of competition law, the question of agreements on the market and in a particularly long and debated judicial context3. [...]
[...] Court of Cassation, Commercial Chamber April 2010, n° 09-13.163 - In the case of an agreement on a competitive oligopolistic market, can the damage caused by it to the economy be evaluated? By a judgment of 7 April 2010, the Commercial Chamber of the Court of Cassation again censured the Paris Court of Appeal in the case of exchanges of information between the three mobile telephone operators, Orange, Bouygues and SFR. It is therefore within the framework of a very complex and long-standing litigation that the judgment presented here is inserted. [...]
[...] Thus, in a ruling of May she retains that Article L. 464-2 of the Commercial Code requires, not a precise quantification of the damage to the economy, but only an assessment of its existence and importance based on as complete an analysis as possible of the elements of the file». The high magistrates will thus specify that the sensitive, confidential, and strategic nature of the information exchanged by telephone operators, as well as the almost perfect regularity of these exchanges and their persistence for six years until the implementation of the administrative investigation, demonstrate the gravity of this anti-competitive practice and their awareness of the infraction of the rules governing the market. [...]
