The Conseil de la Concurrence dismisses AFORST complaint against France Télévisions and France Télécom

29 September 2008

Romain Ferla

On 8 October 2007, the French Association for network operators and telecommunication services (AFORST) complained before the Competition Council about a partnership agreement between France Télévisions and France Télécom and exclusivity rights granted to France Télécom by France Télévisions to distribute some programs in “catch up TV” mode (which allows the viewing of pre-recorded TV programs during a short period of time after their broadcasting).

AFORST argued that the exclusive agreement amounts to both an anticompetitive agreement and to an abuse of a dominant position on the market for “catch up TV” services. For AFORST, these practices restrain the effective and loyal competition between internet access providers. AFORST thus asked for a suspension of the agreement as an interim measure.

The Competition Council dismissed the complaint of AFORST and the request for interim measures. It considered that the exclusive agreement cannot be seen as a violation of Article 81 EC, as there is no anticompetitive will of the undertakings concerned. It also considered that there was no convincing element likely to demonstrate any abuse of a dominant position on any relevant market.

The Competition Council found in particular that the exclusivity was limited to some programmes (only the evening programmes excluding movies, news and sports) the duration of the exclusivity was not excessive and it responded to an economic logic. Indeed, for the consumers, the exclusive agreement allows the appearance of a new service (catch up TV) that France Télécom and France Télévisions are the only actors to offer, and all consumers have a possibility to get access to the programmes proposed by the catch up TV via an internet site.

Nevertheless, the Council stressed that its decision rejecting the complaint concerns a very recent market and does not bar the opportunity, in the future, for AFORST or any undertaking of that sector to refer a new case to the Council in the occurrence of new elements or facts.

Source: Decision of the Competition Council N° 08-D-10 of May 7, 08